THE LAND SURVEYOR'S GUIDE
TO THE SUPREME COURT
OF SOUTH DAKOTA
1890 – 2011
-------------------------------------------------------A REFERENCE TEXT SUPPORTING
THE CONTINUING EDUCATION
OF LAND SURVEYORS
-------------------------------------------------------------BRIAN PORTWOOD
PROFESSIONAL LAND SURVEYOR
2012
------------------------------------------------------------------IMPORTANT, INFORMATIVE AND INTERESTING CASES
INVOLVING BOUNDARIES, CONVEYANCES,
DEDICATION & VACATION ISSUES AND
EASEMENT & RIGHT-OF-WAY ISSUES
TABLE OF CONTENTS
Page
Introduction…………..................................................................................1
List of topics addressed..............................................................................10
Wells v Pennington County (1891)............................................................11
Arneson v Spawn (1891).............................................................................20
Van Antwerp v Dell Rapids Township (1892)..........................................26
Evenson v Webster (1892)..........................................................................33
Randall v Burk Township (1893)..............................................................40
Olson v Huntamer (1894)...........................................................................50
Webster v White (1896)..............................................................................58
Seymour v Cleveland (1896).......................................................................65
Novotny v Danforth (1896).........................................................................74
Roberts v Holliday (1898)...........................................................................83
Yankton County v Klemisch (1898)...........................................................91
Whittaker v City of Deadwood (1900).......................................................99
McGray v Monarch Elevator (1902).......................................................108
Sweatman v Bathrick (1903)....................................................................116
Bernardy v Colonial & US Mortgage (1904)..........................................125
Murphy v Dafoe (1904).............................................................................133
Stewart v Tomlinson (1907)......................................................................141
City of Watertown v Troeh (1910)...........................................................150
Kenny v McKenzie (1910).........................................................................159
Wentzel v Claussen (1910)........................................................................167
Bliss v Waterbury (1911)..........................................................................174
Hoekman v Iowa Civil Township (1911).................................................184
Mills v Lehmann (1911)............................................................................191
Coulter v Gudehus (1913).........................................................................197
Korte v O'Neill (1914)...............................................................................205
Flisrand v Madson (1915).........................................................................213
Anderson v Ray (1916)..............................................................................220
Sample v Harter (1916).............................................................................228
Ingalls v Gunderson (1916).......................................................................237
Lehman v Smith (1918).............................................................................247
Allard v Curran (1918).............................................................................256
Sullivan v Groves (1919)...........................................................................264
Herrick v Gregory (1922).........................................................................273
Karterud v Karterud (1923).....................................................................282
Kreider v Yarosh (1928)...........................................................................290
Henle v Bodin (1928).................................................................................299
Rogers v Standard Life insurance (1928)................................................307
Howe v Shepard (1929).............................................................................315
Gustafson v Gem Township (1931)..........................................................324
Labore v Forbes (1931).............................................................................331
Benson v Benson (1934)............................................................................339
Walker v Sorenson (1936)........................................................................346
Hillebrand v Knapp (1937).......................................................................355
Waldner v Blachnik (1937).......................................................................362
First Church of Christ, Scientist v Revell (1942)....................................369
Graff v Budgett (1943)..............................................................................378
Dailey v Ryan (1945).................................................................................386
Thomas v Johnson (1947).........................................................................395
Pederson v Canton Township (1948).......................................................402
Costain v Turner County (1949)..............................................................409
Kougl v Curry (1950)................................................................................416
Edmunds v Plianos (1952)........................................................................424
Andal v Osthus (1952)...............................................................................432
Crawford v Carter (1952).........................................................................440
Homes Development v Simmons (1955)..................................................448
Judd v Meoska (1957)...............................................................................455
Sioux City Boat Club v Mulhall (1962)...................................................463
Cuka v State (1963)...................................................................................473
Feight v Hansen (1964).............................................................................479
Nicolaus v Deming (1966).........................................................................488
Dolan v Hudson (1968).............................................................................497
Salmon v Bradshaw (1969).......................................................................505
In the Matter of Mackrill's Addition (1970)...........................................512
Taylor v Pennington County (1973)........................................................519
Habeck v Sampson (1974)........................................................................527
Umberger v State (1976)...........................................................................534
Piechowski v Case (1977)..........................................................................542
Tinaglia v Ittzes (1977)..............................................................................549
Haley v City of Rapid City (1978)............................................................559
Northwest Realty v Jacobs (1978)............................................................567
Wiege v Knock (1980)...............................................................................575
Cuka v Jamesville Hutterian Mutual Society (1980).............................583
Shippy v Hollopeter (1981).......................................................................593
Steele v Pfeifer (1981)................................................................................601
City of Belle Fourche v Dittman (1982)...................................................609
Taylor v Tripp (1983)................................................................................617
Block v Howell (1984)...............................................................................627
Aamot v Eneboe (1984).............................................................................636
Townsend v Yankton Super 8 Motel (1985)............................................644
Smith v Sponheim (1987)..........................................................................652
Brown v Board of Pennington County (1988)........................................661
Bryant v Butte County (1990)..................................................................669
Lewis v Moorhead (1994).........................................................................677
Peterson v Beck (1995)..............................................................................687
State v Tracy (1995)..................................................................................695
Pluimer v City of Belle Fourche (1996)...................................................703
Schultz v Dew (1997).................................................................................712
Millard v City of Sioux Falls (1999).........................................................722
Jutting v Hendrix (2000)...........................................................................730
Jacobson v Gulbransen (2001).................................................................738
Bergin v Bistodeau (2002).........................................................................747
Kokesh v Running (2002).........................................................................756
Selway Homeowners Association v Cummings (2003)...........................765
Hofmeister v Sparks (2003)......................................................................773
Burkhart v Lillehaug (2003).....................................................................784
Picardi v Zimmiond (2004).......................................................................794
Rotenberger v Burghduff (2007)..............................................................803
Vander Heide v Boke Ranch (2007).........................................................812
Boyer v Dennis (2007)...............................................................................822
Swaby v Northern Hills Regional Railroad Authority (2009)..............832
Topical index.............................................................................................845
Alphabetical Index…………………………………………………...….871
Other works by this author
The Land Surveyor's Guide to The Supreme Court of North Dakota
(2010)
The Land Surveyor's Guide to The Supreme Court of Montana
(2011)
INTRODUCTION
Although the typical modern land surveyor, being highly skilled and
versatile, wears many hats and performs a wide variety of functions serving
many different purposes, the most basic role of the land surveyor in our
society remains what it has always been, as the principal provider of a
professional level of expertise on boundary location issues. The primary
reason why the practice of land surveying is limited to those who have
demonstrated that they are capable of functioning as professional decision
makers, is to eliminate the negative consequences of incompetent boundary
surveys, which can cause serious economic and social problems when
improperly surveyed boundaries are relied upon in the use and development
of land, by creating a group of qualified professionals that everyone can rely
upon to deal objectively and diligently with boundary issues. Upon
becoming a licensed professional, each land surveyor has the option to
decide for themselves whether that event represents a finish line or a starting
point, and this material presents an opportunity to explore the boundary and
land rights legacy of South Dakota, for those surveyors who choose to view
their professional status as a license to learn. Surveyors can be called upon
either to create new boundaries or to retrace and restore existing boundaries,
and as those who pursue this journey through judicial history will observe,
these represent significantly different functions, with very different legal
implications. In either case however, land owners have the right to expect
the professional surveyor to provide a result that they can rely upon, because
boundaries that they cannot rely upon are obviously of no value to them, and
in fact can cause expensive problems, potentially resulting in liability for
both the land owners and the surveyor. While the right of land owners to rely
on new boundaries marked on the ground during an original survey is
generally absolute, whenever existing boundaries are surveyed several
important questions with significant legal implications appear, concerning
the needs, expectations and responsibilities of the land owners relating to the
survey and their boundaries, how well the land owners understand the legal
effect of a retracement survey, to what extent the land owners are legally
entitled to rely on the survey, and the possible presence of other legal factors
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or conditions that may have an impact on the boundary in question.
Obviously, whenever a survey of any existing boundary is requested, it must
be presumed that the land owner intends to rely on that boundary for some
purpose, and therefore expects the surveyor to locate and mark the boundary
in a manner that the land owner can make use of with complete confidence,
so the essential question becomes whether or not the surveyed boundary is
legally supportable, justifying the land owner's belief that the corners and
lines marked on the ground during the survey represent definite boundaries
that the land owner can safely rely upon.
The typical modern surveyor is a master of measurement science, at
least as it applies to land, and is well equipped with superb technological
tools for that purpose, so if boundaries were controlled entirely by
measurements the law would not be a factor, and the surveyor would have
no particular motivation to learn about the law. Boundaries however, and in
fact all of the many related land rights issues that surveyors often encounter,
are controlled by evidence, making it essential for the surveyor to recognize
the potential value of all the conditions observed on the ground by the
surveyor as evidence, to appreciate the importance of discovering all the
evidence, and to understand which evidence controls the boundary location.
Measurements themselves can be evidence, but as every surveyor should
already know, measurements can become potentially controlling evidence
only in the absence of any of the many higher and stronger forms of
evidence, which are quite seldom truly absent, although their presence may
well go unrecognized. Many surveyors choose to take the position that they
are measurement experts only, with no need or reason to learn the law, and
of course they are entitled to make that decision, since no one can require a
professional to do anything that the professional feels unqualified to do, and
no professional can ethically take on any work which he or she is not fully
qualified to properly complete. Some surveyors believe that the practice of
land surveying is strictly limited to applying existing numerical values of
record to the ground, therefore measurement and computer skills are all the
surveyor really needs, and indeed it is possible to have a full career in certain
branches of the surveying profession based entirely on such technical
knowledge, so in fact there is no absolute necessity for every surveyor to
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know every aspect of land rights law. The surveyor who intends to
participate as a professional in any projects involving land rights however,
should realize that all professionals bear a fundamental burden to operate in
good faith, in all respects, at all times, toward all parties, which means
respecting and honoring all land rights, both public and private, by
documenting all evidence of such rights thoroughly and objectively. In order
to carry that professional burden, the surveyor is obligated to protect the land
rights of all parties by retracing and resolving existing boundaries in a
manner that is legally supportable, so that the surveyed boundary holds
value, and the land can be safely developed without unfortunate legal
consequences, which means that the survey must be based upon the best
available evidence, rather than on measurements alone, in disregard for
superior evidence. Since land rights of all kinds are controlled by evidence,
the basic premise set forth here is that the surveyor can clearly benefit from
knowing what forms of evidence have historically been upheld as
controlling land rights, and also from learning to recognize what does or
does not constitute a conveyance or potential transfer of land or land rights,
which as we will see, can involve much more than the typical simplistic
conveyance by means of a description in a deed.
It should be understood that the goal for surveyors, in learning about
the law, is not to come to independent conclusions about the legal principles
that are involved in land rights controversies, or attempt to apply those
principles independently, but simply to objectively observe those principles
in action, and thereby come to realize the impact that they can have on land
rights in any given situation. By observing how land rights conflicts are
judicially resolved, the surveyor can develop a better appreciation of how
the work of the surveyor interacts with the law, and a better understanding of
why surveys sometimes control land rights and sometimes do not. Engaging
in education of this type is not intended to enable the surveyor to claim to be
an expert on the law, it is intended only to familiarize the surveyor with
situations that are similar to those that the surveyor may encounter, so the
surveyor can see how such situations typically play out, and can recognize
the possible presence of important legal factors that may determine the
outcome, when the surveyor is confronted with comparable circumstances.
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Learning about the law can enable surveyors to point out potentially
problematic situations, and thereby be of greater assistance to both land
owners and attorneys, who are entitled to expect the surveyor on their
project team to be able to demonstrate a professional level of knowledge, the
ability to understand such matters, and the ability to contribute relevant
information and communicate about land rights issues effectively. Only
judges and attorneys need to know the procedural aspects of the law that
operate in the courtroom, but surveyors should at least have a sound grasp of
the basic principles that govern the creation and termination of land rights, in
order to be able to understand how and why land rights can be gained and
lost through the operation of law, and to appreciate the impact that the acts
or omissions of the surveyor can have upon the land rights of the parties. Its
essential for the surveyor to realize that the primary role of the retracement
surveyor is that of a gatherer of evidence, and nothing the surveyor does
independently, such as laying out or staking a boundary of record, can have
any binding effect on any land owners in the absence of their consent, since
no surveyor has any authority to alter existing or established land rights in
any way. Therefore, the prudent surveyor always focuses first and foremost
upon fulfilling their most fundamental responsibility, to thoroughly and
diligently acquire all the available evidence, rather than proceeding
prematurely to the conclusion that the measured location of the boundary in
question represents ownership rights or any other form of land rights. In
summary, the surveyor is authorized only to honor and follow the law, and is
charged with knowing the law well enough to do so, the surveyor is not
authorized to practice the law or to question the wisdom of the law, and
therefore has a duty to maintain a perspective on all land rights issues that is
objective in all respects.
The purpose of this book is to review and discuss decisions of the
Supreme Court of South Dakota which have guided and influenced the
development of those aspects of land rights law that matter most to
surveyors, throughout the period of statehood, in order to provide surveyors
with insight regarding how the Court has dealt with situations in which land
rights disputes occur, and to allow surveyors to see which factors the Court
has found to be most important and decisive in such situations. It should be
4
understood that statements made by the Court are not intended to constitute
an instruction manual for surveyors, and even when specifically discussing
surveys, the Court has no intention of laying down any specific technical
rules, positions taken by the Court are always focused upon addressing the
interests and needs of the litigants, and not the interests or needs of others
such as the surveyor. The prudent surveyor may well observe however, those
practices and forms of behavior that find favor with the Court, and
conversely, those ideas and assertions that the Court consistently rejects or
disapproves, from which themes and patterns defining advisable professional
behavior may be seen to emerge. Among the items that the surveyor can and
should take particular notice of, are the instances in which surveys are
upheld as controlling, and of at least equal importance, the kind of
conditions and circumstances under which surveys do not control. As we
will see, in many cases surveys were done which in the end proved to have
no legal or controlling effect, while in many other cases surveys were not
done although they clearly should have been, and the consequences of those
failures to obtain surveys are quite noteworthy, as an indication that the
value of surveys is often misunderstood, pointing to the need for surveyors
to better communicate the benefits that a survey can provide. While there are
several early cases that are highly critical of surveyors, there are also many
subsequent cases that are very affirmative of the value of surveys,
particularly those done taking all available evidence into account and
treating all evidence with proper respect, highlighting the improvement in
the quality of surveys that has come with licensing. Since professional land
surveyors are expected to maintain and provide expertise on title issues, as
well as boundary location issues, the close and frequent legal interaction of
such issues represents another matter that is covered in this book, and the
position of the Court on issues concerning title and ownership of land, in the
context of controversies relating to boundaries and their resolution, forms
one of the most interesting aspects of the law presented herein. The creation
of proper legal descriptions, and the proper analysis of existing descriptions,
has also been a major focal point of numerous South Dakota cases, many of
which have also involved platting issues, so many valuable lessons
pertaining to the interpretation and preparation of such documents, which
stand as publicly available products of the land surveying profession, will be
5
found herein, along with fascinating cases in which the contents of historic
GLO plats were vital to the outcome.
In order for each professional to best represent the surveying
profession, it is generally considered beneficial for those surveyors engaged
in any form of work that involves land rights to be open to education that
can broaden their view of what represents potentially valid evidence of land
rights, and can increase their appreciation of the value all legitimate
evidence. Only through such advanced education will our society will be
able to consistently rely upon all practitioners of the land surveying
profession to properly comprehend and fulfill their intended role, since
doing so ultimately requires additional learning beyond the relatively
minimal knowledge that is initially required to become a licensed
professional. Understanding why a given survey does or does not control,
under a given set of circumstances, requires insight into those elements of
the law that are judicial, as opposed to statutory, in nature, which points out
the importance of appreciating that decisions of the Court are quite often
based upon judicial wisdom emanating from historic principles of common
law, rather than contemporary scientific knowledge typically possessed by
surveyors and others. One thing that surveyors will learn in reading this
book is that the law is intended to operate in a manner that is fundamentally
equitable, rather than technical in nature, thus the role of the Court is that of
a provider of justice through equitable solutions, and this is the primary
reason why technical details, such as those typically relied upon by
surveyors, very often do not control the results of litigation. Surveyors may
well find themselves in disagreement with certain elements of judicial
wisdom, but this represents merely the natural and inevitable result of the
fact that courts care first and foremost about the rights of the parties, and
about justice as a matter of principle, while surveyors are naturally inclined
to focus upon technical details, and in so doing may overlook or bypass
controlling evidence, such as physical or testimonial evidence of a corner
location, which is at odds with modern measurements, yet is in fact fully
acceptable under the law. As we shall see, one elementary lesson of a
general nature to be learned is that a simplistic understanding of the statutes,
resulting from merely reading them at face value is insufficient, because
6
only the legal interpretation of the statutes performed by the Court itself
fully captures the spirit of the law, which ultimately controls over the mere
letter of the law. The law is not to be applied in unintended ways, and was
obviously never intended to facilitate injustice, so the Court wisely follows
the spirit of the law whenever necessary to achieve results that are in line
with equity and justice, while repeatedly demonstrating that unjustified
reliance on legal technicalities will go unrewarded. Another essential lesson
to be gleaned is the value of good faith action following the spirit of the law,
as only rarely is a party who endeavored to faithfully follow the spirit of the
law penalized, while many instances will be noted in which a party who
unwisely relied upon a literal and rigid reading of the letter of the law meets
with defeat. As we will discover, all of the powerful principles of law that
can apply to land rights are of no avail to a party whose actions run counter
to the spirit of the law, or reveal an absence of good faith, since nothing in
the entire realm of land rights law can overcome these most fundamental
tenets governing human behavior in our society.
Since there have been only a modest number of South Dakota
Supreme Court decisions focused primarily on boundary issues, this book
also embraces other land rights issues that are highly relevant to land
surveyors, in order to more fully depict the development of land rights law
over the first twelve decades of statehood, and to illustrate the fact that many
matters other than boundary issues often become the basis of serious land
rights controversies. In certain situations, it can be just as important for the
surveyor to understand the nature of the specific land rights that are at issue,
and appreciate the significant value of those rights to the land owners, as it is
for the surveyor to deal properly with boundary location issues. Having a
sound knowledge of the other major types of permanent land rights, which
very often physically overlap with the land rights of others to a substantial
extent, can enable the surveyor to achieve a clearer perspective on how and
why many kinds of land rights conflicts develop, and this in turn can help
the surveyor appreciate the value of evidence of the origin of such disputes,
which the surveyor is likely to encounter. Knowledge of easement and
dedication law can be of assistance to a surveyor in trying to figure out how
to most appropriately deal with many problems involved in properly platting
7
and describing land, and can make it possible for the surveyor to correctly
communicate the issues that are in play to both land owners and fellow
professionals, verbally and in written documentation of all forms, being
either utilized or produced by the surveyor. Easement and dedication cases
often involve one very prominent and ongoing source of controversy in the
field of land rights, which is the interaction between public and private
rights, and decisions that adamantly guard essential public land rights will be
seen herein, alongside decisions that strongly protect the sanctity of private
land rights. Those having a distinct personal bias in favor of either the
private or the public side of the equation may come away unsatisfied or even
chagrined by some of the rulings outlined here, but the key to appreciating
the wisdom in all of these rulings lies in recognizing the need to strike a
balance, to support the needs of our society. To that end, it should be
understood that only reading objectively, with an open mind and with the
intention of learning and acknowledging the wisdom of the Court, rather
than merely judging and criticizing the results of these cases based on any
personal preferences or inclinations, will result in a beneficial experience for
the reader. In addition, the reader should remain aware that the
circumstances of each case are unique, and it cannot be presumed that
situations which appear similar are in fact equivalent, since the presence or
absence of even one important factor can change the outcome. The efforts of
the Court to do justice and uphold time honored principles of equity are
richly displayed herein, for the potential benefit of all those who are
interested, and each surveyor is free to decide how much of his or her time
this learning exercise merits.
It is hoped that even those with little concern for the law itself may
find this book interesting, from both a historical perspective and a human
interest perspective, so to make this learning experience palatable, the cases
are presented here in a manner that is intended to be both intriguing and
enlightening. As opposed to a dry and tedious recital of statutes, each case
presented herein is a real life story, involving people from all walks of life,
from the wealthy and mighty to the impoverished and desperate, which
holds one or more valuable lessons regarding the consequences of
sometimes foolish or outrageous human behavior. One hundred cases,
8
balanced to effectively represent the entire period of statehood appropriately,
were selected with a view toward touching and covering the most significant
legal precedents, landmarks and milestones, that fall within the realm of land
rights indicated in the title of this book. Each story begins with an
introductory prelude, discussing the context in which the issues appear, and
in some instances referencing other cases that are relevant to the same
subject matter, followed by a timeline objectively presenting all the facts
relevant to the controversy at hand that were noted by the Court. Its always
important to read the timeline quite carefully, mindful of the potential
significance of each factual item mentioned, and its also often critical to note
the passage of time between successive items, which is quite extensive in a
large number of the cases, emphasizing the potentially great value of
seemingly minor points of evidence that often had their origin in the distant
past. In addition to the wide variety of personalities that will be seen, the
cases also cover the complete range of physical conditions, representing
geographic locations in every part of South Dakota, from urban scenarios to
cases set in some of the most remote areas of the state, so those whose work
takes place primarily in rural areas will discover stories about the kind of
situations and controversies that they can relate to, just as will those who are
more familiar with issues involving platted city lots. Legal citations are not
presented in footnote form within the content portion of the book, citations
for all of the South Dakota cases referenced in the text are instead provided
at the end of the book, and are indexed both alphabetically and by topic, so
the surveyor can access and read the full text of any given case, some of
which are available for free through the Court's website. All interest in this
book is genuinely appreciated, whether complimentary or critical, and all
questions and other comments are most welcome. This effort merely opens a
door upon the subject matter discussed herein, intended to introduce
surveyors to the vast body of public information on the law, which may
serve to broaden and fortify their existing professional knowledge, and any
surveyors inclined to provide input that will expand upon the start
represented here, by contributing additional information that may serve to
enhance the legal knowledge base of our noble land surveying profession,
now or in the future, are very heartily encouraged and invited to do so.
9
The following topics are the principal focus of this book:
ABANDONMENT
CITY STREETS-ALLEYS
DEED VALIDITY
LEGAL DESCRIPTIONS
STATUTE OF FRAUDS
ACQUIESCENCE
COUNTY-TOWNSHIP ROADS
EASEMENTS
NOTICE
SURVEY EVIDENCE
ADVERSE POSSESSION
DEDICATION
ESTOPPEL
RIPARIAN RIGHTS
VACATION
Although the following topics are involved to some extent in the cases
that are included in this book, complete coverage of these and other
related legal topics is beyond the scope of this book.
CEMETARIES
CONDEMNATION
COVENANTS
DIVORCE
DOWER
EMINENT DOMAIN
ESCROW
FRAUD
FORGERY
HOMESTEADS
INHERITANCE
LEASES
LIS PENDENS
MORTGAGES
TRUSTS
PROBATE
WATER RIGHTS
10
LIENS
MINERAL RIGHTS
TAXATION
WILLS
WELLS v PENNINGTON COUNTY (1891)
The Supreme Court of the Dakota Territory came into existence in
1861, when President Lincoln appointed the first 3 Justices, who were seated
at the territorial capitol in Yankton, and of course a great many cases were
ruled upon by the Territorial Court prior to the arrival of statehood in 1889.
While the decisions of the Court during the period prior to statehood were
obviously quite important in their day, they are only very rarely cited by the
Court today, and many of them have been rendered obsolete by subsequent
legislation, so we will analyze in detail only those cases that have taken
place during the era of statehood, while making reference in passing to just a
few noteworthy cases dating from the latter portion of the territorial period.
At the time when South Dakota became a state, the judicial landscape was in
transition, influenced by the great changes in land use that were then taking
place in our society, so the early Justices of the Court had a major task
before them, to adapt their knowledge and their views regarding the proper
application of the law and equity to the needs of a rapidly expanding
populace. We begin, quite appropriately in that regard, with a case that
involves the original boundaries created by the implementation of the Public
Land Survey System (PLSS), which is really focused on just one essential
aspect of that elementary boundary framework, and that is the inherently
public nature of the PLSS. The fundamental premise that boundaries created
by action of the federal government were intended to be beneficial to all
parties, including the general public, as well as the private parties whose
lands are embraced within them, forms the basis for one of the most unique
and interesting elements of South Dakota land rights law, known as the
section line right-of-way. With this case, which forms a true cornerstone of
land rights in South Dakota and has been very often cited as such by the
Court, we embark upon on our journey to achieve a sound understanding of
the important legal and equitable principles relating to easement, right-ofway and dedication law. Easements can be every bit as important to private
land owners as boundaries, and most public land rights occur in the form of
easements, all of which have boundaries that need to be defined and
respected, just as do the boundaries of private properties. As we will learn
from cases such as this one, it is in fact the very existence of the concept of
11
land ownership with boundaries that makes easements necessary, to
facilitate productive land use, so properly describing and platting easements
is vital to our society, to clarify their presence and their purpose, which
makes appreciating and honoring the value of easements essential to the
complete professional land surveyor.
1879 - The GLO conducted surveys in the Black Hills region of the
Dakota Territory, on land that had been formally relinquished by it's
original native occupants to the United States in 1877, subdividing
townships into sections for purposes of settlement and patenting of the
land into private ownership. Wells was among the settlers who
established a land claim in this region at this time. The exact location
and extent of the land he settled upon and made use of is unknown,
but his claim was presumably an entirely typical one, bounded on one
or more sides by section lines.
1880 - The GLO plat of the township in which Wells had settled was
approved, and he made productive use of his land over the ensuing
years, so his rights to the land that he had claimed continued to
mature, as contemplated under the settlement laws in effect at the
time.
1885 - Pennington County engaged in the construction of roads, to
expand the county road system, for the purpose of facilitating the
growth and development of the county. One of the roads deemed
necessary at this time was to run along a section line which evidently
bounded the land of Wells. Wells objected to this decision, and
believed that he was entitled to compensation for such use of a portion
of his land, but the road was constructed and put into use anyway,
presumably centered on the section line as intended, without any
payment being made to Wells.
1886 - Wells obtained his patent, describing the land that he had
settled, confirming his ownership of all of it, including of course the
land upon which a portion of the section line road had been built, and
the patent obviously made no reference to the existence of the county
road.
12
1887 - Wells decided to file an action, claiming that he had been
damaged by the construction and ongoing use of the public road on
his land, seeking the compensation that he felt was due to him, as a
result of his acceptance of the imposition upon his land rights that the
road represented in his view.
Wells was just one of many settlers whose lands became burdened
with functioning public roads, as county road systems were developed, so
while he was acting in his own interest, his complaint was quite typical of
numerous others who found themselves in the same situation, and in fact
comparable disputes were popping up in many other locations around the
new state as well. The fundamental position advanced by Wells and other
private land owners was that land held under private ownership cannot be
taken by any government entity for purposes of any public use, without just
compensation being provided by the government to the private owner or
owners, for their loss of the full use of whatever portion of their land is to be
committed to public use. Therefore, Wells argued that at the time he arrived
and occupied his land, as a typical settler acting in good faith, his rights to
all of the land that he was claiming and occupying were legally established,
and his patent was proof that his presence on the land had been legitimate in
all respects from the outset, so the construction of the road, coming after his
rights to his land had been established, represented a taking of land rights
from him, for which he must be paid. In response, Pennington County
argued that it's right to construct roads on section lines, on behalf of the
public, was already in existence prior to the arrival of Wells, or any of the
other settlers in the region, and all of the settlers had occupied and acquired
their lands subject to that existing public right, so Wells was not entitled to
any payment, regardless of when the road in question was built. The right of
the county to take private land and put it to use as a public road, upon
properly compensating the land owner, was acknowledged by both sides, so
the sole question was whether the county had an existing blanket right to
install roads along any or all section lines, as needed, without providing any
such compensation to land owners. The trial court was in agreement with the
position set forth by Wells, and therefore awarded him the compensation
that he had sought.
13
At the core of this controversy was the interpretation of an 1866 Act
of Congress, codified and popularly known as United States Revised Statute
2477 (RS 2477) which granted a blanket right to create or establish
roadways for the use and benefit of the public over the vast expanse of
public land that stretched across the west at that time, commonly known as
the public domain. Much of the west remained unsurveyed in 1866, and in
fact much of it was not yet even under the full control of the federal
government, although it was within the outer boundaries of the nation, such
as the many areas that were still populated by the native people. The highly
general and simplistic language used by Congress in 1866, when authorizing
the creation and establishment of public roads, had left the real extent of
their intentions in making that grant very much in doubt, precipitating
countless conflicts throughout the west, such as the one seen here. The Court
however, took note of the fact that the meaning of RS 2477, as it applied to
the Dakota Territory, had been conclusively established by the Territorial
Legislature during the 1870s, at which time it had been legislatively declared
that every section line shall represent a public right-of-way, to the width of
one chain, centered on each section line that is physically susceptible to use
for travel or transportation purposes. The Court took the opportunity
presented by this case to formally approve and uphold this legislation, on the
basis that it represented a valid dedication in perpetuity, which applied to all
section lines as they came into existence, and not just to those that were
already in existence at the time of the legislation. Emphasizing that the
origin of the section line right-of-way was in federal law, which had then
been officially accepted and defined with appropriate specificity at the state
level, and following relevant decisions of the Supreme Court of the United
States, with respect to the effect of land rights granted by the federal
government, the Court adopted the position that:
“The object of the grant (RS 2477) was to enable the citizens
and residents of the states and territories ... to build and
construct highways across the public domain ... without making
themselves liable as trespassers ... all persons acquiring any
portion of the public lands after the passage of the act in
question took the same subject to the right-of-way ... the right
14
acquired by the territory or the public was necessarily imperfect
until the land accepted for highways was surveyed, and capable
of identification; but when the land was surveyed and the
various section lines were designated to be public highways as
far as practicable, the right of the territory attached to them ...
territorial law located the highways upon all public lands upon
the section lines, and this public grant or dedication was so
accepted, and became valid as against the government, and
therefore valid as against it's subsequent grantee, who must take
the land subject to this right. The title to the land is not taken
away. It is merely the right to pass over and use it for roads and
highways when found practicable."
Since both an offer of dedication by the land owner, and an
acceptance of that offer by the public, are necessary to legally validate any
dedication of land rights to the public, the Court characterized RS 2477 as
the original offer of dedication, by the United States, being the owner of the
public domain, and the subsequent territorial legislation as the official
acceptance of that offer by the people of the Dakota Territory. RS 2477, in
the view of the Court, had taken effect immediately in 1866 all over the
west, and it had then become binding upon all land in the Dakota Territory
that was part of the public domain, or that would subsequently become part
of the public domain, creating a permanent public right-of-way, to the extent
described, along every section line, as those lines had been created, or would
subsequently be created, by the GLO in performing the subdivision of
townships into sections. Therefore, each specific section line right-of-way
location came into legal existence at the moment each GLO plat was
approved, so the land bore the right-of-way, although it was not depicted on
any GLO plats, from the moment each section was created, and since the
land of every typical settler was defined with reference to a GLO plat, every
patent was granted subject to the existing right-of-way, as an implicit
reservation in favor of the public. So first in 1879, by accepting the
government offer of public land to be settled, and again in 1886 by accepting
his patent, the Court indicated, Wells had implicitly agreed to the existence
of the public right-of-way, in the location defined by the relevant territorial
15
legislation. Since he had not arrived on the land until 1879 the Court found,
he should have known that the right-of-way in question already existed at
that time, even though there was no actual roadway then in existence in that
location, because the territorial law describing the right-of-way location,
where a roadway could one day be built, had been legally adopted, and all
settlers are charged with knowledge of all laws relating to the land upon
which they choose to settle, and they are presumed to intend to comply fully
with all such laws. The fundamental error in the thinking of Wells was his
belief that all of the land rights relevant to his land were enumerated on the
face of his patent, and his failure to realize that many valuable and important
land rights can exist, without ever being mentioned in any document of
conveyance, represents a very common mistake that we will see frequently
repeated throughout the decades. Wells was actually correct that his rights to
his land had commenced to accrue from the time of his entry upon his land,
and not just from the date of his patent, but in this instance that made no
difference, because the section line right-of-way had existed even prior to
his arrival. Holding that Wells had been mistaken in his notion that the road
represented an unjustified intrusion upon his land, the Court ruled that he
had no right to object to the public use of the section line right-of-way, and
was bound to honor it without compensation, so the trial court had erred in
granting his request for payment, and the award granted to Wells by the
lower court was accordingly struck down by the Court.
As previously indicated, this case had a major impact on land use in
South Dakota, and established a highly important precedent, allowing the
development of roadways to go forward more expeditiously, without
engaging in the condemnation process that would have been otherwise
necessary to obtain the land rights needed to facilitate travel across many
parts of the young and rapidly growing state. All other settlers, who like
Wells had arrived during the latter days of the territorial period, learned from
the outcome of this case that their land could eventually be burdened with
public roadways, and that the land rights enabling public improvement of
their section lines were already in place, so they could neither block such
improvements, nor expect any financial compensation for such use of their
land in the future. Wells had been a pre-emption settler, but on the same day
16
of the Wells decision, in the case of Smith v Pennington County, the Court
announced that the same principles applied to the land of Smith, although
Smith was a homesteader, so he had therefore entered the public land and
obtained his patent through a process that was technically different from the
process employed by Wells, also reversing a financial award that had been
granted to Smith, and making it clear that the section line right-of-way
would be very diligently protected by the Court. Its important to note that
the Court clearly specified that the section line right-of-way, being the
product of a dedication process, is only an easement, and is not a taking in
fee, yet the status of dedications as easement or fee long remained a
controversial topic, that would require further attention from the Court to
fully resolve, over the many following decades, as we will later see. Its also
worthy of note that RS 2477 is no longer in effect today, having been
repealed decades ago, but it's effects are certainly still with us, since many
laws that sprang from it, such as those governing the section line right-ofway, remain fully intact and legally effective. The Wells case also clearly
illustrates the role of the Court as the ultimate interpreter of the true meaning
and impact of all legislative acts and statutes at the state level, which of
course is a theme that ripples through most of the cases that we will review
herein. In this instance the Court elected to set a powerful precedent, by
upholding public rights when they came into apparent conflict with private
land rights, but going forward we will see that the Court truly does a superb
job of striking the fine, and often very difficult balance, between public and
private land rights.
A few other prominent early cases involving city streets and county
roads, which are highly relevant to the subject of easements in general, and
to the topic of dedication in particular, are definitely worthy of note at this
point. In the 1892 case of Mason v City of Sioux Falls, two tracts of land
were each platted, creating two typical additions to Sioux Falls, at different
times, and a gap of 66 feet in width was left between the two platted areas,
which was simply shown as a vacant space on both plats and was not
designated as a public road or street on either of them. Mason subsequently
acquired some of the platted lots adjoining this 66 foot strip, and she
objected when Sioux Falls improved a dirt road running through that strip,
17
converting it into a typical city street. Mason asserted that the strip had never
been legally dedicated as a public right-of-way, because the plats made no
reference to it as such, and the trial court agreed, ruling that the strip was not
a city street, and holding that evidence indicating that the strip had been used
as a public way was irrelevant. The Court reversed the lower court decision,
pointing out that dedication by plat is merely one form of legitimate
dedication, and is not the only way of executing a valid dedication. Since the
strip in question had been put into public use as a route of free travel,
without any objection from any of the parties who had owned and platted the
land through which the strip ran, the Court found that the actual use of the
strip by the public represented an acceptance of a tacit offer of dedication,
on the part of the platting parties, comprising a complete and legally binding
dedication. The Court thereby took the position that physical use of land by
the public can be valid evidence of both an intent to dedicate the land and it's
value to the public as a right-of-way, creating an easement to protect it's
ongoing use, and in so doing, the Court also clarified that dedication is
distinct from rights acquired through adverse or prescriptive use, because
dedication is based upon intent, not upon use for any given length of time.
This case marks the adoption by the Court of the highly important concept of
common law dedication, also known as implied dedication or dedication by
implication, and over the coming decades we will watch as this concept
becomes one of the Court's most useful tools for the protection of public
access rights.
In 1896, the Court was confronted with another unusual scenario
involving a city street, in the case of Sweatman v City of Deadwood. A
certain platted street in Deadwood was relocated by virtue of an agreement
that had been proposed by Miller, who was the owner of the relevant land at
the time, and a streetcar track was subsequently built in the relocated
roadway, while a train depot, a waterworks and a bridge were also built in
the immediate area, apparently utilizing the land that had been the subject of
the relocation. Sweatman then acquired all or part of the land owned by
Miller, but Sweatman lived outside South Dakota and evidently he did not
visit or inquire about the site before acquiring it, and he was apparently
unaware that the originally platted location of the street in question had been
18
changed. Sweatman argued that the relocation of the street was invalid,
because the new street location had never been properly dedicated, but
sending an important message to absentee land owners, the Court held that
the relocation of the street had been completely valid and it was legally
binding upon all parties, including Sweatman, stating that his lack of
knowledge regarding the relocation of the street was his own fault. With this
decision the Court again demonstrated it's desire to strongly protect public
uses of land, emphasizing that any form of dedication once completed is
irrevocable, and the Court also here signaled it's inclination to accept and
approve the relocation of easements as a concept, which would prove to be
of great significance in future cases, as we will later observe. Also in 1896,
in the case of Keen v Board of Supervisors of Fairview Township, once
again addressing the section line right-of-way, the Court held that a
township, as well as a county, may open a section line to public travel,
without providing any compensation to any private land owners impacted by
the presence of the section line roadway. Keen was the owner of land that
was already crossed by a public road, which had been created under county
authority and was not located on any section line, so he argued that the
creation of the county road through his property had operated as a de facto
vacation of any section line right-of-way located within the boundaries of his
property, essentially claiming that the county road had replaced the section
line right-of-way. The trial court agreed with Keen and ruled in his favor,
but the Court rejected Keen's premise, maintaining that the section line rightof-way is independent of other public roadways, and is not lost to the public
as a result of the mere creation and use of other public roads. Of particular
interest to surveyors, the Court here also stated that no survey is required to
open or build a section line road, unless the road must depart from the
section line right-of-way due to topography, in which case a survey is
required to determine the extent of the area outside the section line right-ofway thereby dedicated to public use, in order to properly compensate the
private land owner for the public use of that area.
19
ARNESON v SPAWN (1891)
Here we begin our review of cases ruled upon by the Court involving
boundary issues, quite appropriately with a boundary dispute that was
centered entirely upon survey evidence, which although simplistic by
modern standards, went on to become part of the bedrock of boundary law in
South Dakota, having been often referenced by the Court as establishing the
standard for the relevance of survey evidence to the process of boundary
resolution. Three forms of boundary evidence were in play here, all of which
stemmed from survey evidence, those items being physical improvements to
the landscape, testimony concerning an original survey monument, and
survey measurements. As we will see the Court very wisely recognize, the
most critical conclusion to be drawn from all of the evidence was whether or
not the specific PLSS monument at issue was lost, and this in turn dictates
the relative value of the competing evidence. Conflicts such as this one, over
the location of a given boundary, can obviously play out in a variety of
ways, depending upon the nature of the evidence, but the first crucial
decision that factors heavily into how such a controversy will be judicially
resolved is the approach taken by each of the parties and their legal counsel
to the manner in which they will present their position. Since boundary
evidence is not necessarily comprised solely of survey evidence, the parties
are free to obtain a new survey for their own purposes, or to rely upon an
existing recent survey to support their position, or to move forward without
the benefit of any contemporary survey. From the perspective of the land
surveyor, boundary cases can logically be divided into three groups, those in
which neither side obtains a survey or relies upon any recent survey, those in
which both sides rely upon retracement surveys, resulting in a direct
competition between two or more current surveyors, and those in which one
side relies upon a retracement survey while the other chooses to proceed
without the support of any current survey. We will encounter cases of all
three types in this course of study, but here we have a scenario that falls into
the last category, which places one particular survey under the scrutiny of
the Court, making the outcome dependent upon the Court's assessment of the
validity of that survey. The result here stands as an ideal illustration of the
fact that the principal focus of the Court, when dealing with survey
20
evidence, is always upon the right of the parties to rely on the original
survey, as it was executed on the ground, elevating physical and testimonial
evidence to the highest level of significance. Though every survey
completed by a licensed professional land surveyor carries a legal
presumption of correctness, the beneficial effect of that presumption at law
can easily be lost, as demonstrated here, depriving the survey of any value
that it might otherwise have had, if it can be shown that the best available
evidence of the location of the boundary in question was overlooked or
ignored, and was not recognized or utilized as the controlling evidence by
the surveyor.
1873 - Arneson was a tenant farmer occupying the northwest quarter
of Section 32 and Spawn was the owner of the northeast quarter of
Section 31 in a certain township in Minnehaha County. When the
township had been platted, and when these settlers had arrived in the
area, are both unknown, but the ownership of these quarter sections by
the respective parties was unchallenged, both of these quarters
evidently having already been patented prior to this time. The original
monument, a stake with pits and mounds, marking the northerly
corner common to these sections was in place at this time, and there
was no dispute as to the location of any of the section lines.
1874 - A road was built on the line marking the north side of these
sections, and a road was also built on the line between the two
sections, so a road intersection was formed at the northeast corner of
Section 31, but whether or not any effort was made to preserve the
original section corner monument or it's exact position at this time is
unknown. A school house was also built at this time, on a one acre
plot in the southeast corner of Section 30, which plot was located with
reference to the original corner location in the center of the
intersection, and rows of trees were planted on both sides of both
roads, along the edges of each section line right-of-way. Arneson and
Spawn evidently made productive use of their respective lands for
agricultural purposes over the ensuing years, without any conflict
regarding the location of their common boundary.
21
1888 - Rice, the county surveyor, performed a survey in the area,
apparently at the request of a number of unspecified parties, although
whether either Arneson or Spawn were among those who requested
this survey is unknown. Finding no direct evidence of the original
monument itself at the northeast corner of Section 31, Rice elected to
treat the corner as lost, and he identified what he deemed to be the
true section corner location, by means of his measurements, about 200
feet east of the intersection of the existing section line roads. Whether
or not any excavation was ever made, in an effort to find evidence of
the missing monument beneath the surface of the road, is unknown,
and which original corner monuments the county surveyor had found
elsewhere in the township, and had accepted as the basis for his
measurements, is unknown as well. Pursuant to this survey, Spawn
claimed ownership of approximately 12 to 13 acres east of the section
line road, and he proceeded to build a fence, through the cropland that
had previously been farmed by Arneson, running south from the
section corner set by the county surveyor, presumably all the way
down to the east quarter corner of Section 31. Arneson and his
landlord objected to this of course, so Arneson filed an action seeking
to have Spawn compelled to remove the fence and honor the original
section line location as his easterly boundary.
Arneson argued simply that the original section corner monument
location was known to have been in the center of the intersection, and that
the original monument location controlled the location of the relevant
section lines, regardless of it's position as determined by any subsequent
measurements, such as those made by Rice in 1888, even in the complete
absence of the original monument itself, so Spawn's fence was not on the
section line and it must be removed. Spawn argued that the 1888 survey by
the county surveyor was an official survey, legitimately performed by a
surveyor with the authority to perform official surveys, and therefore it bore
the presumption of correctness and should be treated as legally controlling,
so he had the right to rely on that survey when he erected his fence. Spawn
further argued that the survey drawing and field notes prepared by the
county surveyor in 1888 were the strongest and best evidence of the true
22
original section corner location, so his fence had been built on the section
line in question and it was therefore not subject to removal. The trial court
accepted Arneson's testimony, describing the original section corner
monument in question, and indicating it's original location at the center of
the intersection, and ruled in his favor on that basis, requiring Spawn to
relinquish his claim to the area east of the road and remove his fence.
To most experienced boundary surveyors, this case will surely appear
to be a highly elementary one, and it's outcome may appear to be completely
obvious, but in fact, some of the basic principles of boundary control that
may be taken for granted today were not yet so firmly ensconced, at the time
this controversy took place, as to make the result of this litigation a certainty.
At this juncture, the young Court was still very frequently turning to the
decisions of other states for guidance or support on issues with which the
Court had not yet been confronted, including land rights principles as
fundamental as monument control. With it's decision in this case however,
the Court would securely embed the principle of original monument control
into South Dakota boundary law, establishing a major precedent, that we
will see often referenced and employed by the Court as we proceed with our
review. The principal issue before the Court here, with regard to survey
evidence in general, and boundary evidence in particular, was the legitimacy
and the weight of testimonial evidence concerning missing monuments, such
as that given by Arneson. Arneson had personally seen the original
monument at issue, in what he believed to be it's original location, and
importantly, his testimony was corroborated by Walts, a surveyor who had
found and used the original monument in 1873, before it's apparent
destruction during road construction. The testimony of both Arneson and
Walts was further supported by the existing physical conditions, as described
above, all of which bore silent witness to development and use of the land
based on the long standing presumption by all parties that the roads had been
built on the original section lines, at a time when the location of those lines
was clear to all. Convinced that the testimony of Arneson and Walts was
both genuine and compelling, the Court agreed that the trial court had been
correct in finding it to be the controlling evidence, superior in value and
significance to the evidence offered by Spawn, all of which related to the
23
work of the county surveyor. The trial court had rejected the survey drawing
and field notes resulting from the 1888 survey done by Rice, and refused to
bestow the presumption of correctness upon his work, on the basis that it
was not clear that he had followed all of the statutory procedures that a
county surveyor was required to follow. The trial court had allowed Rice to
testify to what he had done, but indicated that his testimony was of little
value, in the absence of proper documentation of his work, and the Court
determined that the boundary evidence presented by Spawn and Rice had
been correctly discarded by the lower court. In the view of this situation
taken by the Court, Rice's decision to treat the original section corner
location as lost, in the face of clear physical evidence to the contrary, in
favor of a new section corner location supported only by measurements, was
his key mistake, and the Court made that very clear in fully upholding the
conclusions and the ruling of the trial court:
“... traditionary evidence, often resorted to in the effort to
establish ancient and obliterated landmarks, in this case tended,
at least, to show that many years before, when these marks were
more distinct and intelligible, they were recognized by the
people living there, including the parties to the present
controversy, as indicating the corner established by the
government ... Surveyor Rice testified ... not being able to find
the government corner he established the corner in dispute ...
When Rice testified as a witness for defendant, his evidence did
not take the place of his official report, nor did it carry the same
presumption ... the primary issue was whether the government
corner determining the boundary line between plaintiff and
defendant was lost or not ... if the corner established by the
government surveyors, and in reference to which the patent was
issued, is found and definitely located, all inquiry as to it's
mathematical correctness is foreclosed ... the mound testified to
by plaintiff's witnesses was the corner established by the
government surveyors, it constituted the true corner, and so far
determined the boundary line of plaintiff's land, without regard
to whether such corner was located with mathematical
24
exactness or not."
The Court quite wisely and correctly observed that the section corner
location in question was not lost, and properly characterized it as being
merely obliterated, since both testimonial evidence and physical evidence
remained, pointing definitively to the missing monument's original and
historically respected locus, at the centerline intersection of the existing
roads. It may well be true that the behavior of Spawn in this instance was so
blatantly opportunistic and self-serving that the Court could scarcely have
approved any result in his favor on any grounds, but the Court did a
masterful job of using the circumstances presented by this conflict to
demonstrate that it understood how to weigh and balance various forms of
boundary evidence. In so doing, the Court here provided a powerful
illustration of the fact that both testimony and physical improvements are
valid and potentially controlling boundary evidence, which should never be
neglected by the land surveyor, even one bearing the mantle of authority
with which a county surveyor is clothed, because boundaries are determined
by evidence, and not by measurements. Some may correctly note that its
certainly possible that the monument seen in 1873 had actually already been
moved by someone, prior to being seen by any of the parties involved in this
case, and it may in fact have originally been more or less in the location
identified by Rice in 1888, roughly 200 feet east of the road intersection.
While this is certainly possible, the Court deemed it unnecessary to address
that possibility for two reasons, first, no charge or suggestion was made that
the monument had ever been moved, and second, the mere fact that the
section corner location testified to by Arneson was not in agreement with
measurements made during a resurvey, such as the one made by Rice, does
not raise a legal presumption that the testified location is incorrect. As most
professional land surveyors are already well aware, measurements stand
below both physical evidence and testimonial evidence in boundary
resolution, and this prevents measurement evidence alone, from overcoming
those superior forms of evidence, emphasizing the fact that the quest to
recover and thoroughly document all relevant physical evidence and
testimony is always the highest priority for the land surveyor engaged in
performing boundary surveys. Sadly, that lesson was evidently lost upon a
25
young man named Van Antwerp, who was a deputy county surveyor under
Rice at this time, and who was apparently trained by Rice to perform
surveys on the basis of measurements, rather than existing boundary
evidence, leading to very unfortunate results for that young man, who would
go on to succeed his boss, becoming the next county surveyor, as we shall
see. Also interestingly, in the course of deciding this case, the Court made
reference to the fence that had been built by Spawn as "an assertion of title"
which eventually "by force of prescription would overcome plaintiff's title
entirely", if not removed, as ordered by the Court, foreshadowing the
coming intrusion of the title doctrine known as adverse possession into the
realm of boundary law, as we will also later observe.
VAN ANTWERP v DELL RAPIDS TOWNSHIP (1892)
From this case we learn that the Court's view of section lines is deeply
linked to the fundamentally public nature of those lines, as alluded to in
reviewing the two previous cases, and quite logically so, given the presence
of the section line right-of-way and the Court's natural inclination to protect
the public interest in it. While most surveyors may tend to think of section
lines first and foremost as boundaries, not without good reason, the Court
has always praised and honored them primarily for their potential usefulness
and value to society, as corridors of commerce and productive travel for all
public purposes. So its not surprising that here the Court takes a highly
utilitarian approach to what really amounts to a boundary issue, resolving
the matter at hand not on the basis of any survey details, but rather with the
objective of guarding existing section line roads against disturbance as a
result of subsequent surveys, knowing all the while, there can be little doubt,
that such established roadways can often also be legitimate evidence of an
original section line location. The question of who has the authority to order
resurveys of PLSS boundaries within a particular township proves to be the
dispositive issue in this case, as the Court wisely takes the position that the
details of any particular survey are of no importance, if the authority to
26
perform the survey was absent. This controversy provides us with the
opportunity to consider not only what happens when a survey is performed
without proper authority, but also what can happen when the results of the
survey do not meet expectations, and it causes unexpected problems, instead
of serving it's intended or anticipated purpose. In this instance, those
subsequent problems, and the litigation itself, are precipitated by the ill
chosen methods and procedures applied to the situation by the surveyor, as a
direct result of his own misconception of what represents a truly correct or
proper resurvey, but the consequences of any such misunderstanding
between a surveyor and a client can be devastating to both parties, making
that lesson one worthy of attention. Beyond the Court's decision, negating
the survey in question for lack of authority, this scenario also shows that the
tendency of some surveyors to prefer measurements over legitimate
boundary evidence, in their desire to correct measurement errors made by
their predecessors, is nothing new, proving that the presence of an
excessively scientific mindset on the part of such surveyors has long been a
factor in the creation of boundary conflicts, which the Court has developed
both legal and equitable strategies to counter. Perhaps the most unfortunate
effect however, for the land surveying profession as a whole, of cases such
as the Arneson case and this one, is that they gave birth to an impression on
the part of the Court that retracement surveys are generally unreliable, which
as we will see was a notion that the Court would not soon forget.
Nevertheless, on the positive side of that equation, this case marks the only
occasion upon which any matter involving an allegation of professional
negligence or incompetence on the part of a land surveyor has ever come
before the Court.
Prior to 1890 - At an unspecified time, the Board of Supervisors of
Dell Rapids Township, which is situated in Minnehaha County,
apparently acting upon the needs or concerns of the residents of the
township, decided to have some survey work done, to facilitate a plan
that the township had, or was developing, to improve and construct an
unspecified number of section line roads within the township. Some
of the section corner locations within the township were evidently
unclear or in doubt to some extent, and the Board deemed it
27
appropriate to order a survey, to verify certain section corners and
lines, prior to beginning the forthcoming road project. The Board
entered a written contract with Van Antwerp, who was a deputy
county surveyor at this time, under which he was to perform the
required survey work. No details of the contract are known, such as
whether it called for a resurvey of the entire township or only some
part or parts of it, but an agreement for survey work was documented,
and Van Antwerp completed the work, apparently fully covering the
desired area or areas, if not the entire township. There is no indication
of the specific methods or procedures employed by Van Antwerp in
completing this PLSS resurvey, but the results of it were evidently
entirely unsatisfactory to the Board, since they refused to pay him for
his work, and they accused him of negligence in performing the work.
So Van Antwerp filed an action, seeking to compel the Board to pay
him for the work that he had done at their request, regardless of
whether his results were in line with their expectations or not.
Van Antwerp argued that a valid contract had been made, and legally
documented, and he had fulfilled his legal obligation under that contract,
which was to establish all the required section corners and lines on the
ground, in such positions as were deemed to be most appropriate or correct
in his judgment, which he had done, so he was fully entitled to all of the
compensation due to him, as stipulated in the contract. Dell Rapids
apparently conceded that the work agreed upon had been completed by Van
Antwerp, to the extent that the intended area or areas had been fully covered
by the resurvey, but the Board alleged that the work had been done
"negligently and unskillfully", leaving the township with numerous
controversies over boundaries, which had not previously existed, and calling
the legal validity of the existing road locations to into question, thereby
failing to accomplish the intended purpose of the survey. The Board had
evidently envisioned the resurvey as a verification of the location of the
existing section lines within the township, which would have served to
confirm the authority of the township to perform the anticipated road
improvements and other construction within the relevant portions of the
section line right-of-way, where such work was apparently needed, so the
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Board took the position that Van Antwerp's resurvey was incompetent and
unworthy of any compensation. The trial court concluded that the resurvey
had indeed been improperly executed by Van Antwerp, and therefore denied
his demand for payment.
Rather than viewing this conflict as a contest over the accuracy or
quality of the survey work that had been done by Van Antwerp, since the
real source of the controversy had been the township's effort to define the
true location of certain portions of the section line right-of-way, for road
improvement purposes, as opposed to boundary resolution purposes, the
Court chose to focus on the question of who actually had jurisdiction over
the section line right-of-way. The applicable laws relating to jurisdiction
over such roads had been in place since 1883, well prior to the survey in
question, and the Court noted that townships had no right under the existing
statutes to make any binding determination of the location of any section
line right-of-way, the right-of-way itself being held by the state, and control
over the section line roads being delegated to the counties for administrative
purposes. In fact, the Court indicated, townships had no right to authorize
surveys for any road purposes at all until 1890, when a law was passed that
granted townships legal authority to order surveys for minor or local road
purposes. So in reality, the Board's decision to even attempt to delineate the
location of the section lines within the township, by means of a resurvey for
road purposes, had been a violation of the law, making the contract with Van
Antwerp a legal nullity, which meant that there was no reason to assess how
the survey had been carried out, because the survey could not be deemed
controlling, or legally binding on anyone, regardless of how well or how
poorly it had been done. It certainly would have been very interesting to
watch the Court analyze the details of the Van Antwerp survey, but as is
typically the case in such situations, the Court found it unnecessary to do so,
since the matter at hand could be more expediently resolved on other
grounds, eliminating the need for the Court to review the manner in which
the survey had been performed, or to examine any of it's technical aspects or
it's potential consequences. In view of the nature of the allegations made
against him by the township, it would appear that Van Antwerp had
misunderstood the task assigned to him by the Board, and had set out to
29
perform an independent resurvey of the township, rather than a dependent
resurvey, mistakenly following the unfortunate example set for him by Rice,
his boss and apparent mentor, as outlined in the Arneson case just previously
reviewed. Regardless of what the Board may or may not have instructed him
to do however, the methodology employed by Van Antwerp had clearly
been fundamentally flawed, since no resurvey of an independent nature,
disregarding existing evidence of the original survey of such a settled
township, could be authorized in any event. The language employed by the
Court in disposing of the case, both initially in 1892 and again upon
rehearing in 1894, leaves little doubt that Van Antwerp's approach to his
work was not destined to find favor in the eyes of the Court, even if his
survey had been properly authorized:
“If the law has made other adequate provision for resurveying
these section line roads when in doubt or dispute, then it could
not be claimed that the township supervisors possessed such
power ... the matter of the resurvey of section line roads, when
necessary, was, by the law as it then stood, committed to the
board of county commissioners, with the expectation that it
would be done by the official surveyor of the county ...
obliteration of the original government marks has been
adequately provided for ... it was then the theory and plan of the
law to entrust to the board of county commissioners the power
and duty of providing for definitely locating these lines, when
necessary on account of doubt or dispute, and that,
consequently, such power could not properly or lawfully be
exercised by the township board ... the legislature ... has not
conferred upon township boards any such authority ... to
establish, change and vacate county roads ... section line roads
are county roads and can only be changed or ... resurveyed by
order of the county commissioners ... the town board cannot lay
out, change or vacate any county road, what practical benefit
can a survey of those roads be to the township, or who can be
bound by such a survey? We fail to discover any useful purpose
that such a survey can subserve."
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It can thus be clearly seen that the real basis for the Court's decision in
this case was the fact that the townships, by statute, had no power to alter
any section corner or section line locations on any pretense, so they could
have no independent jurisdiction over the section line roads or right-of-way,
they could exert only whatever authority the state or the appropriate county
might properly delegate to them, relating to the section line right-of-way,
which is typically limited to the responsibility to maintain the existing roads.
Van Antwerp's quest for payment proved to have been entirely futile from
the outset, since his survey was declared by the lower court to be illegitimate
and non-binding, and that position was upheld by the Court, although on
other legal grounds, leaving his work without any value, and his contract
impossible to enforce. Van Antwerp appears to have incurred no liability for
his faulty work, or the consternation it caused, for both the Board and the
residents of the township, despite the finding of the lower court that he had
been negligent, presumably because his survey was ultimately decreed by
the Court to have had no legal effect on any existing boundaries, so it had
resulted in no permanent damage or injury to any existing land rights. The
township also ironically escaped the burden of paying for the survey, but
only because it turned out that the Board had no right to order or authorize
any PLSS resurveys whatsoever. One might expect Van Antwerp to have
learned a serious lesson from the defeat he suffered in this case, having been
embroiled in this legal struggle for over two years, only to come away from
it empty handed, but that would not prove to be the case. The Court had on
this occasion effectively postponed the task of taking a definitive position on
the stridently independent approach to the practice of land surveying
demonstrated by Van Antwerp until a later date, perhaps hoping he would
get the message and rethink his procedures, but the day would eventually
arrive when the Court would be compelled to squarely confront the
consequences of Van Antwerp's work, as we shall see. Although the practice
of land surveying has changed dramatically since the time of this case, and
the roles of all land surveyors, including county surveyors, are now
obviously very different from what they were in the 1890s, this case remains
relevant even today, since it demonstrates the importance of properly
understanding the task at hand, and being cognizant that there are very
definite limitations on what a land surveyor is capable of legally
31
accomplishing on his own volition.
Interesting as it may be, in the end this case does not provide the land
surveyor with definitive guidance on the issues of surveyor negligence or
surveyor liability, since the Court did not pass judgment on the negligence
allegation made by the township, nor does it indicate the extent to which a
surveyor may be expected or obligated to comply with any directions or
instructions given to the surveyor by his client. Every land surveyor should
understand of course, that executing surveys involving boundaries
objectively, without favoritism toward any party or parties who happen to be
paying for the survey, is a fundamental aspect of the surveyor’s duty as a
professional, and the surveyor should always insure that the client
understands this principle as well. This case certainly does illustrate quite
well however, that there can be very unfortunate consequences for both the
parties and the surveyor, and potentially serious legal and financial
ramifications as well, whenever the surveyor fails to carry out or accomplish
the true intentions of the client in ordering the survey. So this case does
serve as a poignant reminder to the surveyor that it is always prudent to
clearly and fully define and document the scope of any work that the
surveyor agrees to perform, in sufficient detail to make the client aware that
the results of the survey may or may not fully meet the client’s expectations
in every regard, thereby advising the client that the surveyor cannot ethically
guarantee any specific results in advance. In general, the surveyor, as a
forthright partner, intent upon serving the needs of the client, should be sure
that the survey work being done accords with the intentions of the client, to
whatever extent that is ethically possible, and likewise as a responsible
professional, the surveyor should also make sure that the client understands
any factors that may operate to limit the surveyor’s ability to comply with
the client’s intentions, all for the ultimate benefit of all parties. If Van
Antwerp and the Board had achieved a fuller agreement on what was
actually intended to be done, both sides would have been better served, the
surveyor would have been paid, the legal implications of the statutes
banning the township from ordering PLSS resurveys would never have been
invoked, and this litigation would never have taken place, making the
wisdom in properly clarifying the scope of any proposed survey work in
32
advance, to the satisfaction of all parties, self-evident. Most unfortunately
however, Van Antwerp's misguided training appears to have placed an
indelible stamp upon him, permanently imprinting him with a mindset that
caused him to make it his perpetual goal to correct all the errors of his
predecessors, including those of the original GLO surveyors, despite the dire
warning benevolently issued by the Court here, which would lead him back
to the halls of justice repeatedly, as we bear witness to the futility of his
efforts.
EVENSON v WEBSTER (1892)
This case introduces us to several basic concepts of law and equity
relating to the validity of conveyances of land rights, which are highly
relevant to the professional practice of any surveyor, since land surveyors
are generally expected to be able to understand the content and meaning of
existing documents of conveyance, and to be able to recognize and point out
potential problems that may appear in either existing documents or
documents that are under preparation. While no surveys or surveyors are
involved in this case, like many others discussed herein, the principles that
guide the decision making process carried out by the Court in dealing with
controversies such as this one are fundamentally universal, and have wide
application across the whole land rights spectrum. Observing how the Court
deals with grantors, grantees and all other parties who have a role to play in
transfers of land and land rights makes it clear that even the Court's
resolution of matters that are limited to the proper interpretation of
documentation can carry valuable lessons, which apply to the Court's view
and treatment of surveys and surveyors as well. In this case, the court
expresses it's view of what constitutes sufficient conveyance language,
emphasizing the important concept that substance always controls over
form, thereby legitimizing a document that was prepared without a
professional level of care or skill, but which nonetheless finds favor with the
Court, as a genuine transfer of land executed in good faith. As we will often
33
observe going forward, in it's wisdom the Court liberally employs
affirmative equitable tools, such as substance and good faith, as a means of
moderating or regulating the otherwise unduly severe impact of literal
applications of the law. To that effect, here we learn that even a document
containing only very minimal information pertaining to the subject property,
and not even purporting to be a deed, can nevertheless represent a valid
conveyance of land, demonstrating a key principle that will be further
expanded upon when we later encounter similar conveyancing cases
implicating the statute of frauds. Perhaps most importantly however, the
Court's resolution of this dispute brings two of the most vital and powerful
of all of the principles controlling land rights into focus, the principles of
intent and estoppel. Intent is undoubtedly the most frequently invoked
principle in the entire land rights arena, and the dogged pursuit of evidence
of the intentions of the original parties is invariably a hallmark of all of the
learned Justices at the appellate level of our judicial system, although their
interpretations of intent are not always uniform. Understanding estoppel is
equally essential however, since it forms a counterpoint to the affirmative
doctrines of equity, by providing the Court with a punitive equitable tool,
that can be exercised whenever it becomes necessary to deny a litigant the
opportunity to contradict or reverse a position which that party once took, on
the basis that such a reversal would inflict a patent injustice upon an
innocent party or parties. We will watch as these highly powerful judicial
maxims are repeatedly brought forth and developed over the decades, in land
rights battles of every kind.
1879 - Simonson was a childless single man, 64 years of age, who
owned a certain quarter section. He was evidently aware that he was
in ill health and was near the end of his life, so he decided to prepare a
will. Rather than seeking any legal assistance in preparing his will, he
simply wrote it himself, in the form of a crude letter or note on a plain
sheet of paper, instead of using a legal form of any kind. In the note,
he simply stated his intention to leave all of his property including his
quarter section to Larson, who was evidently a friend of his, in
exchange for Larson's agreement to care for him during his remaining
days. Larson was present when Simonson wrote this will, and so was
34
Bergeson, apparently another friend of Simonson, who signed the note
along with Simonson, as a witness. Simonson's only living blood
relative was his sister, Evenson, but relations between them were
evidently not particularly good or close. She learned about the
existence of her brother's will, by some unknown means, within a few
days, and she apparently had some concerns about the fact that she
was not mentioned in it. In an apparent response to her concerns, 9
days after the will was written, Simonson wrote another note, in
which he stated that upon his death, Evenson was to get "a team,
harness and wagon" that he owned. In this note, Simonson also wrote
that Evenson had agreed not to make any claim to Simonson's real
estate, and this note was signed by Evenson. Larson then proceeded to
care for Simonson at Larson's home, as he had agreed to do, until
Simonson's death, which apparently took place shortly thereafter. All
of these parties were Scandinavian immigrants, who used the English
language only with considerable difficulty. Where Evenson lived is
unknown, and whether or not she had also been involved in caring for
her brother is unknown as well, but Simonson's land evidently went
unoccupied for an unspecified period of time, both before and after his
death, and there is no indication that Larson, Evenson or anyone else
ever occupied it or made any use of it. Following Simonson's death,
Larson paid off all of Simonson's debts, and presumably also took
possession of Simonson's personal belongings, while Evenson took
possession of the team, harness and wagon that had been promised to
her. There was no controversy over the ownership of Simonson's
quarter section for an unspecified length of time, until Webster took
possession of it, under an apparent conveyance agreement with
Larson. Once Evenson learned that Webster was making use of the
quarter section, and claiming the right to legally acquire it from
Larson, she filed an action seeking to have Webster ejected from the
land, on the basis that Larson did not own it, because it belonged to
her, as Simonson's sole heir.
Evenson argued that the notes written by her late brother, purporting
to convey the quarter section in question to Larson, were legally invalid and
35
non-binding, and they could not function as legal instruments, because they
were not formal or official legal documents, and they had not been properly
prepared, delivered or recorded, so Larson had never acquired Simonson's
land, which had passed to her instead, upon his death. Webster argued that
despite the legal deficiencies and the highly informal nature of the
documents prepared by Simonson, they accurately expressed his true
intentions, and they were sufficient to operate as legitimate and binding
instruments of conveyance, so Simonson had in fact conveyed his land to
Larson, and Evenson had no right whatsoever to the property in question,
therefore Larson owned it and he was free to convey it to Webster. The trial
court decided that the documents in question were legally sufficient and
binding upon all of the parties, rejecting Evenson's claim to the quarter
section, and confirming Larson's ownership of it.
In the course of human events, a great many things are done in ways
that are somewhat less than ideal. Statutes admirably serve the important
purpose of setting forth such legal requirements as can be foreseen to be
necessary, to create a viable framework of law, for the benefit of our society,
but not every possible situation or contingency can be anticipated and fully
addressed by such a process of codification, so the Court is often required to
determine what does, or does not, represent compliance with existing law.
Always striving to perform this vital role in a just and equitable manner, the
Court typically looks primarily to the spirit of the law, and disdains technical
factors that tend to militate against those parties who have sought to comply
with the law in good faith, never allowing technicalities to prevent justice
from being done. Whenever its clear that the balance of good faith lies
plainly with one side, and against the other, the Court will inevitably craft a
decision that rewards the party whose good faith is clearly in evidence, and
bring the sword of justice down upon the opposing party. This realization by
the Court, that actions taken in good faith, although perhaps misguided in
some way, are worthy of protection, and that the law was never intended to
be used as a weapon against those who have acted in innocent ignorance,
represents the wisdom that guides many of the Court's decisions on land
rights, as we shall frequently see going forward. In this instance, as is quite
often the case, the Court was called upon to decide the legitimacy of an
36
alleged conveyance, which had been carried out in a manner that could
potentially be characterized as negligent, and perhaps even fatally so, as
Evenson suggested here with her assertions. Evenson was technically correct
that her brother, presumably due to his modest or limited knowledge of the
English language, had failed to use any of the formal language of a standard
conveyance, neglecting to use the word "grant" for example, or any
equivalent term. In addition, Simonson had failed to expressly identify his
letter as a deed or immediate conveyance, creating an opportunity for his
sister to subsequently suggest that the note may have amounted to nothing
more than a proposal or a tentative idea on his part. The Court however, as it
typically does, declined to emphasize strict compliance with legal and
formal technicalities, and focused instead upon the single most essential
evidentiary element in the entire arena of land rights, which is the true
intentions of the parties. The concept that intent, once properly ascertained
from all of the evidence, is the paramount factor in disposing of land rights
controversies, is undoubtedly among the most universal and ubiquitous
precepts of justice, and the Court's resolution of this conflict represents an
excellent example of it's application:
“While the document is informal, and is designated "a will", the
intention of Simonson to transfer the title of the property to
Larson is, we think, clear from the language of the instrument,
construed in connection with the other facts proved. No
particular form for a conveyance is prescribed by the statutes of
this state, other than a short form, which it is provided may be
used ... an estate may be transferred by any instrument ...
without seal ... without words of inheritance ... and without
livery ... the operative word of a conveyance is "grant", but
other modes of conveyance operate equally as grants, any
words showing an intention of the parties to convey ... It is
made the duty of the courts in the construction of every
instrument conveying an estate to carry into effect the intent of
the parties ... the term "grant" ... is not indispensable ... the title
was good in Larson ... Larson performed each and every part of
said agreement ... plaintiff is estopped from claiming the
37
property by the agreement or release signed by her."
As can readily be seen, the Court determined that neither Simonson's
failure to use appropriate legal terms, nor his failure to place his words on
any type of proper legal form, was sufficient to defeat his very humble, but
equally sincere, effort to adequately document his intentions. All that was
legally required of him, the Court declared, to compel his intentions to be
fulfilled and honored, was to record the names of the relevant parties, and
the subject matter of the agreement, and to subscribe his words in his own
hand. Once Simonson, as a grantor, had thus expressed his intentions
regarding his land, to his own satisfaction, and had given the document that
he had created to Larson, as his grantee, the transaction was complete, all
that remained was for Larson to fulfill his part of the bargain, as he had
done, to secure conclusive ownership of the quarter section unto himself.
The knowing and voluntary physical transfer of the document into Larson's
hands, from those of Simonson, constituted a binding legal delivery of a
valid instrument of conveyance, equivalent in substance, though not in form,
to a typical deed, and any rights of Evenson to the land at issue were
foreclosed at that moment. The Court's staunch support for Simonson's
minimal text illustrates that written words are always treated in context by
the Court, and any evidence revealing their true meaning to the parties
themselves, or their intended objective, which serves to shed light on the use
of certain words or phrases, is always relevant and important evidence, that
cannot be ignored. On rehearing in 1894 the Court reiterated it's ruling that
Larson had legitimately acquired the quarter section in dispute, and was free
to convey it to Webster. Evenson was neither the first nor the last litigant to
learn the hard way that charges such as those made by her, which are heavily
reliant upon legal technicalities, can be expected to find little or no favor
with the Court. Her futile attempt to contradict her own prior agreement to
relinquish her rights to her brother's land provided the Court with an ideal
opportunity to invoke an estoppel against her, and it did so, pointing out that
she had accepted the benefit of her own bargain with her brother, making her
subsequent attempt to deny the validity of that agreement completely unjust
and unworthy of consideration. Evenson may have believed that she could
simply dismiss the second note written by her brother, and signed by her, as
38
legally insignificant, but in the eyes of the Court, her decision to reverse
herself, and deny that she had ever agreed to abandon her interest in his land,
once he was no longer able to speak, tipped the crucial balance of good faith
decisively against her. We will watch as estoppel proves to be an even more
critical factor in a number of future cases, being employed as a powerful tool
by the Court, to silence those who see fit to try to enlist the aid of the law, in
their efforts to deny the validity of their own previous acts, promises or
commitments.
The time honored common law principle dictating that intent is
always a potentially controlling factor, in resolving conflicts of every sort,
pervades all aspects of land rights litigation, and is inevitably a matter of
prime interest to the Court. Intent is key to the outcome of practically every
controversy involving land rights, because one of the fundamental objectives
of the Court in every case is to establish which party or parties can be
properly characterized as innocent, and that determination requires an
assessment of whether or not their actions were taken in good faith. Intent is
examined, ascertained and utilized by the Court to literally tip the proverbial
scales of justice, by establishing which of the litigants has the balance of
good faith in their favor, so the significance of any and all evidence of the
intent that motivated the parties is never to be overlooked. In the 1896 case
of McKenna v Whittaker, the Court proclaimed that intent can control all
aspects of a deed, even whether the deed represents an actual conveyance or
a mere document of security, in the nature of a mortgage, and that case has
been frequently cited for that proposition by the Court. In the Evenson case
just discussed, the legal description of the land at issue was a very simplistic
one, being a plain quarter section, and it was therefore unquestioned, so the
descriptive language was not in play, but as all surveyors know, the content
and real meaning of the descriptive portion of a deed or other conveyance
agreement can very often become a source of major controversy itself.
During the early years, the Court analyzed and ruled upon many description
issues, most notably including the 1888 case of Hollenbeck v Prior.
Hollenbeck owned a quarter section, which he conveyed to Prior, who
planned to subdivide it. Hollenbeck had a house on the property however,
and rather than relocating it he decided to reserve that area unto himself, but
39
in his deed to Prior he described it only as "one block of land where the
same is situated" with reference to the house. Hollenbeck later demanded
that Prior provide him with a 300 foot tract around his house, but Prior
refused. Hollenbeck maintained that he was entitled to a complete and full
size 300 foot block within Prior's subdivision, by virtue of his reservation,
but the Court ruled that his reservation description was void for uncertainty
of location, since Hollenbeck had made absolutely no effort to describe any
boundaries, sending a powerful message to grantors, that deed reservations
must be properly described. In Cole v Custer County Agricultural, Mineral
and Stock Association in 1892 however, citing numerous interesting
description decisions from other states, the Court took the more liberal
position that any description which adequately identifies a unique tract of
land can represent a valid legal description, approving a description of a
fairground, which was described only as "lying and being in the northwest
corner of Section 32" with no acreage or dimensions whatsoever. In so
doing, the Court adopted the prevailing modern position that a description
which can be made certain through relevant extrinsic evidence is sufficiently
certain, although not fully defined with specificity, precision or complete
detail in any document of conveyance.
RANDALL v BURK TOWNSHIP (1893)
This case presents a scenario virtually identical to the one that served
as the basis for the payment dispute between Van Antwerp and Dell Rapids
Township, which we have already reviewed, since it involves another
resurvey that was completed by Van Antwerp while he was still an
apparently young and relatively inexperienced deputy county surveyor,
before his work had come to the attention of the Court. This time however,
the approach taken by the township to the situation created by Van
Antwerp's work was quite different, instead of rebuking his work, as Dell
Rapids Township had wisely done, the leadership of Burk Township chose
to embrace it, and set out to legally adopt it, treating the resurvey as an
40
official revision of the original survey of the township. Its not surprising of
course that officers of local government at the township level at this time
had little or no knowledge of the law pertaining to land surveys, so its easy
to imagine that they really believed that they were completely at liberty to
accept and approve the resurvey that Van Antwerp had done at their request,
and free to require the residents of the township to abandon various portions
of their lands, in order to conform to the newly monumented boundaries
resulting from the resurvey. Why it was the preference of certain individuals
to take this attitude, we will never know, perhaps some of the township
officials themselves, or their relatives or friends, stood to gain land that they
particularly wanted, or perhaps Van Antwerp himself misinformed them
about the legal status of his work, leading them to believe that they had the
authority to conclusively accept it, which is quite possible, since he was
apparently mistaken himself about the degree of controlling force that his
own survey work carried. Be that as it may, the position taken by the leaders
of Burk Township with regard to this resurvey would produce one of the
most powerful and memorable boundary cases in the history of the west.
This case has been cited with favor over 70 times, including references made
to it by the courts of many other western states, as a landmark statement on
the subject of boundary evidence in general, and the topic of the proper
treatment of survey evidence in particular. Although most decisions
rendered in boundary cases do not represent direct guidance from the Court
to land surveyors, as previously stated herein, this is one of the rare cases
wherein the specific acts of a surveyor were focused upon, explicitly
scrutinized and expressly renounced by the Court, providing a very direct
and especially poignant record of the Court's perspective upon the proper
role of the land surveyor in our society. It may be suggested that no land
surveyor practicing today would ever do what Van Antwerp did, and also
that the frontier conditions under which he worked were so different from
conditions today, that this case may no longer have any relevance. The
principles that form the foundation of the outcome of this case however, are
truly timeless, and are as applicable today as ever they were, so although the
knowledge of the typical surveyor and the amount and kinds of evidence
available today are indeed both very different from the conditions that were
in place when this bitter conflict played out, this decision still stands as a
41
judicial milestone, with regard to the adjudication of the validity of land
surveys, and it is unquestionably South Dakota's most important boundary
case.
1862 - The boundaries of many townships in the southeastern part of
the Dakota Territory were surveyed by the GLO, one of which would
become Burk Township in Minnehaha County.
1864 - The GLO subdivided this township into sections.
1872 - Settlers began to enter the area and establish land rights within
the township. When Randall arrived on the scene is unknown, but she
was apparently among this group of early settlers. She entered the
south half of the southwest quarter of Section 4.
1878 - Settlement of the township was substantially complete by this
time. Some of the settlers had located their own boundaries based on
survey evidence they discovered, which they presumed to represent
the section and quarter corners set in 1864, while others had enlisted
the help of the county surveyor, or other surveyors with knowledge of
the area, to set their corners for them, in those places where no
original survey evidence was discovered. So by this time, a large
number of resurveys had already been done within the township, and
the various section corners were marked by a mixture of original and
non-original monuments, but all of the corners were monumented in
the same manner, using wooden stakes with mounds and pits, making
the reset corners indistinguishable from the original corners to the
typical entryman. There were no known disputes over land rights at
this time, all of the monuments that had been set were apparently
equally respected and adopted by all of the entrymen, as being either
authentic original monuments or faithful perpetuations of obliterated
original monument locations. Over the ensuing years, roads were built
and other improvements were made, establishing lines of occupation
and use, based on these mutually accepted section and quarter corner
locations.
1887 - In anticipation of an extensive road improvement project, the
township trustees ordered a resurvey of the entire interior of the
42
township, which was completed by Van Antwerp, who was the deputy
county surveyor at this time. Van Antwerp accepted few if any of the
existing monuments that he found within the township as genuine
original monuments, and he set new monuments at virtually every
section and quarter corner location throughout the township, based
entirely on his measurements, essentially performing an independent
resurvey, and deliberately neglecting all existing physical boundary
evidence, so this resurvey left many of the existing improvements
subject to relocation. In most areas, the new corners set during this
resurvey differed from the existing lines of occupation by 200 to 300
feet, the new lines being that far south and west of the previously
established boundaries. Not surprisingly, numerous disputes erupted
throughout the township, as some of the land owners insisted that
existing roads, buildings and other improvements must be relocated to
the resurveyed section lines, while others refused to abandon the
established boundary lines, being convinced that they were in fact the
true original section lines. Randall was one of those who wished to
adhere to the original lines, declining to relocate her home and other
buildings. She became the leader of a group of township residents
who were in the same situation and like her were inclined to defend
the validity of their established boundaries, so the group filed an
action against the township, seeking to have the resurvey struck down
as invalid.
Randall and her fellow plaintiffs argued quite simply that the 1887
resurvey had been improperly executed, because it neglected to honor and
follow the footsteps of the original GLO survey, and only the original survey
controlled their boundaries, so the mass relocation of improvements
proposed by the township based on the resurvey was entirely unjustified.
Burk Township argued that the 1887 resurvey was perfectly legitimate,
because it was in agreement with the original GLO plat and field notes, and
it should therefore be accepted and be declared to be legally binding upon all
parties. The township further maintained that all of the physical evidence of
the original subdivision of the township had been destroyed and should be
considered lost, because some unknown number of the corners in question
43
had been reset by later parties, so none of the existing monuments could be
trusted or presumed to be genuine original monuments. The township also
took the position that the original plat and field notes represented stronger
evidence of the true original monument locations than did the physical
evidence on the ground, so the only legitimate way of restoring the original
corners and lines was by means of measurements, without regard to any of
the established boundaries within the township, which was what had been
done during the resurvey. The litigants reached an agreement that the sole
issue was whether or not the resurvey had properly restored the corners and
lines of the 1864 GLO survey, and they entered a legal stipulation to that
effect with the trial court. The trial court held that the resurvey was
acceptable and controlled the location of all of the section lines lying within
the boundaries of the township, so all of the improvements that were not in
agreement with the resurvey were subject to relocation.
Since Randall's argument was really a direct assault upon the validity
of the 1887 resurvey that had been ordered by the township, and the
township agreed that the validity of the resurvey was the decisive issue, the
Court focused it's attention exclusively on the manner in which the resurvey
had been conducted. There was voluminous testimony, the Court noted,
including that of two local surveyors who had worked in the area during the
1860s and 1870s, who verified that many of the original monuments had
been obliterated, and confirmed that those monument locations had been
perpetuated by them, at a time when the original monument locations were
still visible, clarifying that at least a majority of the restored monuments in
the interior of the township, if not all of them, actually marked authentic
original corner locations. The testimony given by Van Antwerp himself was
quite extensive and detailed, providing the Court with the key to the
outcome, by revealing his inherently misguided methodology. It was clear
that he was perfectly confident that he had executed his work flawlessly, and
he was proud of his personal skills, especially his measurement capabilities,
so he freely outlined all that he had done. He had begun at the southeast
corner of the township, he stated, and proceeded to subdivide the township
along the lines of record, meticulously following the original field notes,
while disregarding and bypassing all physical evidence of established
44
boundaries. Unfortunately, he had evidently been educated only in
measurement science and he had never been properly trained to recognize
valid boundary evidence, or to understand or respect the most fundamental
principles of boundary law, so he made the elementary mistake of supposing
that it was his duty to resubdivide the township, based solely on the
numerical data of record. Failing to realize that the settlers had the right to
rely fully on the physical evidence of the original survey, and that as a
retracement surveyor, he had no authority to deny them that right, by
creating a new set of boundaries running through their lands, he had
proceeded to independently establish his own corners, with a degree of
precision which was superior to that presented by the original GLO work, as
if the township had never been subdivided or occupied. There can be little
doubt that the prior experience of the Court with Van Antwerp's work, as
previously documented herein, motivated the Court to severely scrutinize his
decision making on this occasion, leading to an excoriating review of his
methodology by the Court. The comments of the Court were so devastating
to his reputation as to be painful for any fellow surveyor to hear, but he had
certainly invited such criticism, albeit unknowingly perhaps, by needlessly
and unjustifiably disrupting the harmony of a community, amounting to
behavior of a kind that is never welcomed or condoned by the Court, which
took full advantage of this opportunity to make it abundantly clear that it
would neither approve nor tolerate the work of a surveyor who had failed to
honor established boundaries:
“Van Antwerp states he followed the original field notes as to
courses and distances, and that he was unable to find within the
township any of the old original government mounds ... Van
Antwerp also admits that he did not pay any attention to the
topography ... he relied entirely upon the courses and distances
... it was his duty ... to follow the original boundary lines as
fixed by the government surveyor ... We have given the
evidence in this case very careful consideration, in view of the
importance of the questions involved ... the mounds and pits ...
though somewhat indistinct and imperfect, must control in all
subsequent surveys, if they can, in any possible manner, be
45
identified ... a number of these old monuments were in
existence at the time of the Van Antwerp survey ... he ignored
the existence of these old mounds ... upon the theory ... that he
was not bound to follow them. In this, he was clearly mistaken
... it may be true that he made a more accurate survey than the
government surveyor, yet ... he failed to perform the duty
required of him ... he says that he did not find any government
corners ... at the proper points as indicated by the courses and
distances. But such an excuse is hardly permissible ... it may
have been much easier to make an entirely new survey, but this
is not what the law requires ... Van Antwerp paid too much
attention to the courses and distances ... and too little attention
to the monuments ... Van Antwerp's survey is not in accordance
with the government survey, and the boundaries, as established
by him, are not the boundaries and corners originally
established ... such a survey cannot be sustained ... he was not
following the boundaries and monuments as run and marked by
the original survey."
Van Antwerp had apparently been trained to take a completely
scientific approach to land surveying, and had adopted the rule that no
monument could be accepted as a genuine original unless it was in complete
agreement with his measurements. He did evidently accept all of the
monuments he found along the outer boundaries of the township, but
apparently only because he saw them as being superior in pedigree, or as
marking the limits of his corrective efforts. He had failed to comprehend that
all of the monuments that had been set by the GLO, when originally
subdividing the township in 1864, were equally important and controlling,
and all of the settlers who had acquired land in the township were fully
entitled to rely on all of the corner locations just as they had found them,
upon first arriving in the township, so they had no obligation to verify that
the monuments they found had been set with any particular degree of
measurement precision before relying upon them. The concept of an
independent resurvey, as contrasted to a dependent resurvey, was not yet
well developed or widely understood at this time, and the education of
46
surveyors was highly inconsistent, so misconceptions regarding proper
methods and procedures abounded among surveyors, and Van Antwerp was
definitely not alone in holding his utterly erroneous view of the
responsibilities of a retracement surveyor. The primary lesson that he should
have learned here, is that the presumption that monuments are invalid,
whenever they do not match subsequent measurements, is a false premise.
From what we will observe in future cases however, it seems tragically clear
that he learned little or nothing from his experience in this instance.
Anything that represents a legitimate perpetuation of an original corner or
line location, the Court realized, can constitute valid boundary evidence, and
the ultimate duty of the land surveyor is to recognize, evaluate and respect
all such evidence that comes to the attention of the surveyor, in order to
protect all existing land rights, rather than simply rejecting evidence without
consideration. Van Antwerp had a virtual ocean of valid existing physical
evidence before him, when he began his work in Burk Township, yet he
chose to bypass all of it, and execute what he visualized as a corrective
survey, rather than observing the value in what had been done prior to his
arrival. Instead of honoring the existing evidence and dealing with it
properly, he appears to have been overwhelmed by it, and decided that his
task would be made easier by just ignoring everything he saw, as the Court
pointed out, electing to allow measurements alone to control the results of
his survey. Unfortunately for him, this was not a judgment that he was
qualified to make, since as the Court indicated, no surveyor has any
authority to deliberately ignore what was done by his predecessors,
particularly once their work has been relied upon by innocent parties, or to
reject valid boundary evidence merely because it is not in agreement with
subsequent measurements, which represent the product of refined
technology. It was Van Antwerp's erroneous decision therefore, regarding
the validity and significance of the existing boundary evidence, and his
failure to even acknowledge it as such, that destroyed any controlling value
his survey might have had, leading the Court to invalidate his work, and
reverse the decision of the lower court.
The township officials however, apparently found the lines produced
by the resurvey to be preferable for their purposes, so they opted to continue
47
the legal battle to have the 1887 resurvey declared valid and binding upon all
of the land owners, which resulted in another trial of the matter. Randall and
her co-plaintiffs prevailed in this second trial of the same controversy, so it
was an appeal by the township, the second time around, that brought the case
back to the Court in 1897, at which time the Court simply reiterated that the
resurvey was invalid and could not control any of the corners or lines in the
township. Notably, despite the 5 years of agonizing litigation and expense
for all of the parties involved, which Van Antwerp's poor judgment had
precipitated, he faced no charges of negligence, nor did the Court ever even
suggest that he should bear any liability whatsoever. Still insistent however,
that the lines of the resurvey must be put into effect, presumably because
they had already invested a great deal of time and money in building or
improving roads along some of the lines created by the resurvey, the
township officials commenced condemnation proceedings against Randall
and the others who still demanded that their original boundaries were
legitimate, as the Court had proclaimed. Even though Randall and the others
were correct, and they were fully supported by the law, their properties were
nevertheless subject to condemnation, and this was confirmed when the case
came before the Court for the third and final time in 1898. So in the end, all
of the original section lines were eliminated, and the lines of the resurvey
took effect and became legally binding, but only upon the successful
completion of the condemnation process, which of course required that
Randall and the others who had stood with her must all be fully compensated
for the value of all the land and improvements that they had lost, rather than
because the lines of the resurvey were correct, as the township had
endeavored in vain to prove, because that would have eliminated the need
for any compensation to be paid to Randall and the other impacted parties.
Although Randall lost a substantial portion of her land in the end, which had
been removed and excluded in effect from her section by the erroneous
resurvey, she had prevailed on all of the controlling issues and principles,
and she was ultimately vanquished in her quest to retain her original land
only by the policy of eminent domain, making her valiant battle to protect
her original land rights one of the most compelling efforts of it's kind in the
history of the west.
48
Quite ironically, with regard to Van Antwerp, on the very same day
that it issued the original Randall decision in 1893, the Court announced
another decision concerning another survey, which had been done by Van
Antwerp in 1889 and had become an object of controversy, in the case of
Hanson v Township of Red Rock. In the Hanson case, the Court fully upheld
the work of the deputy, who had correctly rejected a pit and mound
monument that was purported by Hanson to be the northeast corner of
Section 12 in Brandon Township, which lies directly west of Red Rock
Township. Hanson owned land in Section 12 adjoining the range line
between those two townships, and for unknown reasons he had come to
believe that a certain monument, which evidently had the appearance of a
genuine GLO monument, was situated on the range line, so his property
extended east all the way to that monument. Brandon Township evidently
did not dispute Hanson's claim, but Red Rock Township took issue with it,
and apparently called upon Van Antwerp to resurvey the range line in
question, for the specific purpose of locating or setting the northwest corner
of Section 7 in that township. Van Antwerp proceeded to recover certain
other monuments, which were undisputedly located on the range line at
issue, well to the north and well to the south of Section 12, and he then ran
the range line forming the west side of Section 7, revealing in so doing that
the monument seen by Hanson was actually a little more than a quarter mile
east of the range line, presumably representing a sixteenth corner rather than
a section corner, as maintained by Hanson. The Court applauded and
congratulated Van Antwerp for his role in disproving Hanson's foolish
claim, unfortunately Van Antwerp appears to have mistakenly taken this
success as a vote of approval for all of his survey procedures, while
choosing to ignore the comments made upon his work by the Court in the
Randall case, as we shall learn when we encounter his future exploits. This
divergence in the results of these two cases, dealt with by the Court at the
very same time, provides significant insight into how the Court views survey
evidence, and the importance that it places upon the magnitude of
measurement discrepancies. The principle of monument control always
applies, in theory, regardless of the magnitude of the measurement
discrepancy, but the basis for the principle is the concept that monuments are
more definite and reliable than measurements, so the extent to which a given
49
monument differs from a measured location can be relevant to the Court's
resolution of the boundary location. This case therefore serves as a valuable
reminder that when a given monument is being challenged, the farther it lies
from it's theoretically intended location of record, the more open the Court is
likely to become to the suggestion that the monument was not merely set in
error, it may in fact have been intended to represent an entirely different
corner.
OLSON v HUNTAMER (1894)
Here we come to our first case on the subject of riparian rights, which
will serve to introduce 3 of the most basic elements that control the location
of riparian boundaries. The first and invariably most important factor in
establishing riparian boundaries is the concept known as navigability. All
waters are either navigable or non-navigable, but the determination of the
navigability status of any given body of water, for purposes of title and
ownership of the submerged land, can be a matter of great consternation and
complexity. The Supreme Court of the United States very diligently
established a comprehensive definition of navigability for title purposes, but
the process through which that was accomplished spanned several decades
of highly intensive litigation, concerning lakes, rivers, islands and even the
oceans, finally reaching it's fruition with the case of United States v Oregon
in 1935. It was necessary for navigability to be properly and conclusively
defined by the United States Supreme Court, rather than by individual states,
because land rights held by all of the states themselves, under the United
States Constitution and the Equal Footing Doctrine, are dependent upon a
consistent definition of navigability. The great importance of navigability to
owners of lands that are bounded by waterways, constituting riparian lands,
therefore lies in the fact that private ownership of lakebeds, riverbeds and
islands can be conclusively litigated only in the absence of the rights to such
land that are held by the states in trust for the public. In addition, here we
will also first observe the occurrence of natural variation in shoreline
50
locations, which can result from accretion, reliction or erosion. These natural
factors can function either separately or in combination, and together their
action and impact represents another important element in the evaluation of
riparian boundary locations, which we will see play out in varying context in
numerous cases decided by the Court. Of most importance to the outbreak of
the conflict underlying this case however, and to the outcome of this
controversy as well, is the use and meaning of meander lines, which like
many aspects of land surveying are so poorly understood as to cause
frequent problems, often resulting in litigation. We will watch as the Court,
at this early date, officially recognizes and adopts the important concept that
there was no intention, on the part of the federal government, to reserve any
land lying beyond meander lines and beneath non-navigable waters, when
conveying the public domain into private ownership. The Court's
acknowledgement of the limited role of meander lines for boundary
purposes, along with it's acceptance of the principle that meander lines do
not control navigability, leads to the conclusion that in reality meander lines
rarely represent actual boundaries, which stands as a major factor in the
protection of the land rights of the owners of riparian property. We will later
review many riparian cases of a more detailed nature, but this case stood
alone as the sole standard for the adjudication of riparian rights in South
Dakota for over 20 years, during the early period of statehood.
1867 - A certain township was subdivided into sections by the GLO,
and a large lake extended southward across the central portion of the
north line of Section 3 in this township. This nameless lake covered a
substantial portion of both the northeast and the northwest quarters of
Section 3, but it did not cover the whole north half of that section. The
lake was meandered and riparian government lots were platted all
around it, so in Section 3 several lots adjoined the southeast and
southwest shores of the lake.
1868 to 1888 - This lake was apparently very shallow, and during this
time period it began to dry up, so by the end of this period the lake
covered only a much smaller portion of Section 3 than it had covered
twenty years earlier. Therefore, a large amount of land that had been
underwater at the time of the GLO survey, mainly in the east half of
51
the northwest quarter and the west half of the northeast quarter of
Section 3, had become exposed and was suitable for cultivation. There
is no indication that any settlers arrived in the area during this period
however, so it appears that most, if not all, of the land in the north half
of the section remained unoccupied and unused at this time.
1889 - Olson settled on Lot 1 in Section 3, which had been platted in
1867 as containing 24 acres, and was located in the northeast corner
of the section, along the east side of the lake. Olson was apparently
uncertain as to the location of the west boundary of his land, so he
obtained a survey, which indicated that an additional 38 acres of dry
land now existed directly west of the meander line, which had
formerly been part of the lakebed, and this 38 acre area was labeled
"Accretion to Lot 1" on the survey. Based on this survey, Olson came
to believe that his lot included this additional 38 acres.
1890 - Huntamer arrived on the scene, and occupied an unspecified
location near Olson's land, presumably one of the riparian government
lots adjoining Olson's lot, on either the north or the south, and
Huntamer immediately began using a large area as cropland, including
some unspecified part of the 38 acre area lying directly west of
Olson's residence. Olson was concerned by this, but for unknown
reasons he decided to make no objection to the use of this area by
Huntamer at this time, so Huntamer successfully raised and harvested
his full crop without any interference from Olson.
1891 - Having observed that Huntamer had been able to successfully
grow a crop on the 38 acre area the previous year, Olson evidently
decided that he wanted to begin making use of that area himself the
following year, so in the spring of this year he began plowing a
portion of the 38 acre area. Huntamer however, confronted Olson and
insisted that he cease and desist, because Huntamer intended to use
the same area as cropland again this year, just as he had the previous
year, and he forced Olson to vacate the 38 acre area. Huntamer
believed that the platted meander line along the east side of the lake
formed Olson's west boundary, and the former lake bed was still
owned by the government, and was therefore open to settlement and
52
use by anyone, and was not part of Olson's lot, so Huntamer believed
that he had the right to claim the entire portion of the former lakebed
that he had cultivated as part of his property, based on his actual use
of that area. Olson allowed Huntamer to utilize the land in dispute
again this year, so Huntamer proceeded to make full use of it,
harvesting another crop from it, but Olson then filed an action for
damages against him, seeking to have Huntamer compelled to pay
Olson the value of all the crops that Huntamer had grown upon, and
harvested from, the 38 acre area.
Olson argued that he was entitled to the money that Huntamer had
made by using the 38 acre area as cropland, since that area was legally
attached to the land that Olson had selected and settled. Since Olson was
only an entryman, and had not yet obtained a land patent, he could not
expressly claim legal title to any of the land, so he sought only financial
compensation for the use of the 38 acre area by Huntamer. Huntamer argued
that Olson did not own the land in question, and had no valid legal claim to
it, so Olson had no right to prevent Huntamer from using it, and no right to
demand that Huntamer pay Olson anything for the use that Huntamer had
already made of the former lakebed. A referee was appointed to look into the
matter, and mindful that Olson held no legal title to any of the land, the
referee concluded that Olson had no valid claim to the 38 acre area, because
it was west of the meander line, since the referee was apparently inclined to
believe that the meander line defined the west boundary of Olson's lot. On
that basis, the trial court declared that the whole former lakebed, including
the 38 acre area, remained federal land, open to settlement by anyone, such
as Huntamer, and the court therefore had no jurisdiction over the matter,
dismissing Olson's case, and leaving Huntamer free to continue using the
area in controversy, without paying Olson anything for his use of it.
The fact that Lot 1 in Section 3 had not yet been patented to Olson,
may at first glance appear to have represented a significant obstacle to him,
since it left him with no land at all that he could prove complete legal
ownership of, and both the referee and the trial judge evidently considered
his lack of legal title to be seriously detrimental, if not fatal, to his case.
53
There is no evidence that Huntamer held legal title to any land in the area
either however, and the Court, in it's superior wisdom, was able to overcome
that potential legal obstacle, and view the two litigants essentially as being
equal in terms of ownership status. Both of the men were plainly settlers
who were acting in good faith, based simply on their own very limited
personal knowledge concerning the laws or rules that are applicable to such
situations, and legitimately attempting to acquire land through compliance
with the laws and regulations relating to the settlement of the public domain.
Therefore, the Court readily disposed of the mistaken notion, which had
afflicted the referee and the trial judge, that no acquired land rights existed
to be adjudicated, and all of the land in the area in controversy was still
purely federal land, free of any private land rights. Both parties, the Court
noted, held all of the equitable rights that accompany any valid entry upon
public land, made in good faith compliance with the law, which reside with
each entryman during the period of time that he spends fulfilling his
commitment to the land that he has occupied and put into productive use,
thereby earning his patent. Moreover, every patent, once issued, legally
harkens back to the moment of original entry, not just to the date of the
patent itself, so no legitimate settler, can be so utterly without rights to the
land he is claiming as to be unable to defend or protect it from illegitimate
intrusions, just because he has not yet had the opportunity to complete the
time period required to obtain a patent. For that reason, though all of the
land involved in this case, and apparently all of the land immediately
surrounding it as well, was still legally in federal ownership, being as yet
unpatented, the Court held that the lower court had been incorrect in finding
an absence of jurisdiction, because the equitable land rights that had been
established by the litigants as bona fide settlers were subject to adjudication
under state law, and this of course potentially included the proper resolution
of their boundaries. This perspective upon the situation taken by the Court
opened the door to a full treatment of the relevant riparian rights questions
that were presented by this case, relating to the topics of navigability,
reliction and most importantly in this scenario, the true role of meander
lines, which the Court squarely addressed, adopting the widely accepted
definition of meander lines, and acknowledging that they are not intended to
function as boundaries:
54
“For the purpose of determining the quantity of land for which
a purchaser must pay, meander lines are run ... and not for the
purpose of limiting to such lines the title of a grantee or
claimant ... there is nothing ... indicating that defendants
attempted to justify their action in ejecting and excluding
plaintiff from the land in controversy by showing that they had
any claim or right thereto, either legal or equitable ... the land
covered by such lake or within the meandered lines does not
belong to the government, but to the adjoining proprietors,
under the common law right of riparian ownership ... plaintiff is
entitled to the privileges of such a proprietor and ... is entitled to
the exclusive use and occupation of all the land that he will
eventually take under his patent ... meander lines ... are run for
the purpose of ascertaining the exact quantity of the upland ...
natural boundaries, like streams and bodies of water ... extend
the title of the riparian owner to the center ... a grant of land
thus bounded is intended to include the contiguous land covered
by water ... plaintiff is entitled to the ... lake bed within the
meandered lines described."
The foremost issue to be given due consideration in a typical riparian
rights conflict is generally the navigability status of the body of water to
which the claims being made relate, since a finding that a given body of
water is navigable brings public rights into play, which can obviously
operate as a restriction upon the extent of the ownership claims that could
otherwise be made by the private parties involved in litigating their
boundaries. In this case however, the relevant body of water was clearly
non-navigable, in fact it had virtually ceased to exist, through an apparently
gradual and natural drying process, over the course of two decades,
suggesting that it may never have been anything more than a swamp or
marsh, which arguably should not have been meandered at all, or which may
have been meandered only because the GLO survey happened to take place
during an unusually wet year. So the conclusion that the lake in question was
non-navigable was never a point of contention, despite the fact that it had
been meandered, since meander lines are not conclusive evidence of
55
navigability, as the Court properly recognized. The fact that the water had
practically dried up completely really made no difference in the ownership
status of the 38 acre area whatsoever, because land beneath non-navigable
waters, as the Court indicated, is never presumed to be reserved, either by
the federal government or by any subsequent grantor of riparian land, when
a conveyance of such land is made, and is always presumed to be part of the
conveyance. Huntamer could potentially have ventured to assert that the
original survey had been fraudulent, on the theory that no true lake had ever
existed, suggesting that the erroneously meandered area should be treated as
federal land for that reason, as a means of support for his claim that the
meander line represented a genuine boundary of Olson's lot, but he made no
such charge, so the Court was not required to address the omitted land
concept, which was not yet legally well developed or established at this
time. The most substantive difference therefore, that had resulted from the
recession of the water, was the increase in the value of the acreage
comprising the exposed portions of the former lakebed, as the land became
subject to cultivation, making the relicted area useful enough to become a
source of controversy over it's ownership status. The fact that the water had
simply receded was undisputed, and there was no assertion made by either
side that it had suddenly disappeared, or shifted it's location in some way, as
a result of some particular or specific event, which could have suggested
avulsion, the concept of avulsion being generally applicable only to flowing
bodies of water, which unlike lakes, have the capacity to undergo very
dramatic alterations to their location. So there was no question in this case
that the land in dispute, and other large portions of the former lakebed as
well, represented relicted land, gradually exposed by a naturally diminishing
local water level, and steadily attaching to the adjoining upland as it
incrementally emerged from beneath the water.
The key element of the conflict seen here, in the view of it taken by
the Court, was the failure of the parties to properly comprehend the purpose
and meaning of meander lines. The litigants were certainly not alone in their
error and ignorance concerning meander lines, and even surveyors and
judges have mistaken meander lines for boundaries, due primarily to the fact
that a meander line bears the appearance of a boundary, it's location being
56
described by the familiar means of bearings and distances. Olson was
uncertain about the significance of the meander line that defined his 24 acres
of upland, but he was apparently well advised, and therefore was able to
understand that his rights were not limited to the 24 acres designated on the
GLO plat as Lot 1. Huntamer however, was clearly not well advised, since
he was apparently convinced that meander lines did represent boundaries,
leading him to believe that the exposed lakebed was not associated with
Olson's lot in any respect. If the meanders of the nameless lake had actually
been fraudulent in their origin, Huntamer could have prevailed, on the basis
that the area shown as a lakebed on the GLO plat was still unsurveyed
federal land, that was not part of any platted lots, potentially available for
settlement by a newcomer such as himself, but in the absence of any definite
evidence of fraud in the GLO survey, Huntamer's notion that the meander
was Olson's west boundary was destined for rejection. All of the platted lots
had always extended to the centerpoint or centerline of the lake, the Court
declared, rather than merely to the meander line, so Olson's claim to the 38
acre area was legitimate, and clearly superior to Huntamer's claim to that
area, regardless of the use that Huntamer had made of some of the land
during two growing seasons. Division of the former lakebed was not
addressed by the Court, since no other private parties were apparently
present to participate in such a process, making a formal division of the
entire relicted area unnecessary. In view of all these factors operating in
Olson's favor, it might well be imagined that the Court would reverse the
lower court's dismissal of Olson's claim, which had left him the loser, and
effectively handed victory to Huntamer, but that was not the case. The Court
upheld the lower court decision, on the grounds that Olson had asked only
for a financial award and had failed to provide any evidence of the extent to
which he had been damaged, leaving Olson defeated again. The injustice in
this result was readily seen however, and upon a rehearing of the same
subject matter and evidence in 1896, the Court clarified the situation, by
awarding Olson nominal damages, presumably one dollar, as a symbolic
gesture, since doing so officially made him the victorious party, which at last
enabled him to legally banish Huntamer from the relicted portion of Lot 1
that had been outlined by means of survey. Presumably Olson did so, and
went on to secure his patent, confirming his ownership of the land that he
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had thus struggled and battled so long to earn.
WEBSTER v WHITE (1896)
Returning us to the subject of PLSS boundary resolution, this case
again illustrates that the Court did not view section lines in isolation during
the early years, striving instead, as it always does, to strike an appropriate
balance between public and private land rights, the Court here again deals
with the section line at issue in the context of it's role as a part of the section
line right-of-way. While highly aware of the need to support the
development of an efficient network of infrastructure for public travel
throughout the young state, the early Court was also intensely focused on
protecting private land rights, and here we find a specific example of that,
which is equivalent to the scenario that was presented in both the Van
Antwerp and Randall cases, already reviewed herein, on a smaller and more
detailed scale, relating to one particular section line. In the years prior to the
licensing of land surveyors as professionals, the work of county surveyors
was generally afforded a level of respect that was equivalent to professional
status, and many county surveyors were undoubtedly among the most
respected members of their communities, and were rightly acknowledged as
being highly valuable contributors to the development of their respective
counties. This inevitably resulted in some uncertainty and some
misconceptions about the authority of county surveyors, their deputies, and
land surveyors in general however, which the Court sought to clarify in this
case. Many local officials apparently believed that they had the authority to
alter or rectify original section lines, either through the mere act of
authorizing a resurvey and engaging a surveyor, or by leveraging such
authority as they believed to be vested in county surveyors themselves, and
township officers therefore set out to exercise this alleged authority to
relocate numerous section line roads, when alternate locations appeared to
be preferable for public purposes. The dispute that resulted in the case we
are about to review had it's origin in such misconceptions, requiring the
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Court to again address the significance of respecting the section line rightof-way, as originally established, and the importance of properly
understanding both the operation and the limitations of the legal
presumption of correctness that applies to land surveys executed by duly
authorized surveyors. In it's wisdom, the Court realized that the public
interest was best served through the protection of both public and private
rights that had been acquired under the original GLO surveys, and it was
thus intensely focused upon limiting the ability of public officials to exert
control over private land, quite understandably however, some Justices held
diverging views on the relative value of various forms of boundary evidence.
As we will observe, a split in judicial thought not surprisingly emerges here,
regarding the value of physical and testimonial evidence of original surveys
versus survey evidence of record, such as platted measurements and field
notes, which was destined to play out over the next several years,
demonstrating that while every concept, theory or trend typically meets with
some judicial resistance when tested, and that resistance may even take
control at some point in time, the pendulum of justice soon returns to a state
of normalcy.
Prior to 1893 - Webster was apparently a farmer, who owned an
unspecified amount of land located in the east half of Section 26 in
Split Rock Township, in Minnehaha County, if not the entire east half
of that section. How long Webster had owned his land is unknown,
but he was apparently an early settler and an original entryman, who
had made note of the location of the original GLO monuments
marking the corners of his land, at a time when those monuments,
which were evidently mounds in this area, were still present and
observable. At an unspecified date, roads were built along some of the
section lines in the township, including the east line of Section 26.
Webster never made any objection to the location of the existing road
along the east boundary of his land, since he was apparently satisfied
that it had been built on the true original section line. The monuments
marking the original location of the east line of Section 26 were
presumably wiped out when the road was built, and there was no
indication that any effort was made to perpetuate their locations,
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leaving the road itself as the only physical evidence of the original
monument locations. Who owned the land in the west half of Section
25 is unknown, it may have been either vacant or occupied, but there
was no evidence that anyone residing in that section ever protested the
location of the existing section line road.
1893 - White, who was the overseer of the township roads, acting
under directions from the township supervisors, ordered a resurvey of
some, if not all, of the section lines in the township, for purposes of a
road construction and improvement project that was being undertaken
by the township, and this resurvey was completed by an unspecified
deputy county surveyor. No details of this resurvey are known, but the
surveyor staked the east line of Section 26 about 300 feet west of the
existing road, despite testimony that was provided to him during the
resurvey, by Webster and other residents of the area, that the road
marked the original section line location. White then informed
Webster that the township intended to relocate the road to the
resurveyed section line, so Webster filed an action against White and
each of the township supervisors as individuals, seeking to prevent
them from carrying out their plan to relocate the section line road.
Webster argued that the true original location of the section line in
question was marked by the existing road, and that the defendants had no
authority to relocate the section line right-of-way from it's original location.
He accused the overseer and supervisors of exceeding their legal authority to
maintain and improve the section line roads in the township, asserting that
by attempting to relocate the existing section line road, they were trespassing
on his land. Webster recognized that the four men were legitimate township
officials, but he filed his complaint against them as individuals, rather than
naming the Board of Township Supervisors in his complaint, because he
believed that when they went beyond the boundaries of the existing section
line right-of-way, they lost their status as government officials, and were
reduced to the status of plain trespassers. White and his fellow defendants
argued that they were acting in their official capacity, and could not be
charged as individual trespassers. They further argued that they were entitled
to rely fully upon the section line right-of-way location indicated by the
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resurvey, since every survey carries a legal presumption of correctness,
therefore their plan to relocate the road to the surveyed location of the
section line right-of-way was completely legitimate, and they could not be
found guilty of trespassing in performing such a relocation. The trial court
ruled that the existing road marked the true original location of the section
line in question, and the resurveyed location was not the original section line
location, so the township officials had no authority to execute the intended
road relocation, awarding Webster the damages he had requested as well.
Separate issues relating to two distinct topics were in play in this case,
one being the limitations on the authority of township officials, and the other
being whether or not a resurvey should always be treated as controlling. The
Court readily disposed of the claim made by White and his co-defendants
that they were immune from attack as individuals, regardless of what they
had done, including entering Webster's land with the intention of building a
new road through his cropland, because everything they had done was
premised on their right to carry out their intended functions as public
officials. The Court sternly reminded them that they had no authority to
relocate, or to extend their construction work beyond, the original limits of
the section line right-of-way, so Webster had been fully justified in resisting
their attempts to run a new roadway through his field, since that act
represented an unjustified taking of a portion of his property that was legally
unencumbered by any right-of-way. Having confirmed that the township
officials had no authority to relocate any established section line right-ofway, the Court proceeded to assess the validity of the resurvey that had been
done by order of the township. A statute had been passed in 1890, the Court
noted, expressly providing that all surveys properly executed by county
surveyors bear a legal presumption of correctness, and it was on the basis of
that statute that White insisted that the 1893 resurvey must be accepted by
all parties as controlling the original location of the section line in
controversy. The Court concluded however, that the legal presumption of
correctness dictated by that statute had in fact always existed, so the statute
had merely served to approve and confirm an established legal premise.
Furthermore, the Court indicated, the presumption that any given survey is
correct amounts only to a starting point for purposes of legal analysis, and is
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not conclusive evidence in itself, nor does it make any survey binding by
default, so evidence calling the validity of any given survey into question, or
tending to show that it is inaccurate in some respect, is always worthy of
consideration, and is capable of preventing a survey from controlling the
boundary location at issue. In this case, Webster had presented compelling
evidence, in the form of his own testimony and that of other long time
residents of the township, that the original monuments along the east
boundary of his section had been located where the existing road was built,
and this evidence had been properly found to be superior to the resurvey,
which was based solely on measurements of record. Therefore, the Court
observed, the statutory presumption that the resurvey had been correctly
executed had been successfully overcome and negated, by the prevailing
testimony, which had indicated that the resurvey had failed to follow in the
footsteps of the original GLO survey, in the view of a majority of the Court:
“Defendants contend that the survey made by the county
surveyor was the corporate act of the township, and is binding
upon all landowners ... we are unable to view it in any such
light ... It is claimed that defendants were performing their duty
as public officers ... they were not performing any official duty.
It was their duty to maintain and work a highway along the
section line as established by the original survey, not on a line
18 rods west thereof, and through the land of plaintiff. When
they left the section line, they left the highway, and whatever
they did beyond the limits of the highway was without authority
and unlawful ... Defendants, having exceeded their authority as
township officers, might be treated as trespassers, and enjoined
as individuals ... The trial court found that the line run by the
county surveyor between Sections 25 and 26 does not
correspond with the line of the United States survey ... A large
number of witnesses were examined ... the evidence is
conflicting ... the court was justified in finding as it did in
respect to the true location of the line in dispute."
The resurvey was unauthorized to begin with, the Court determined,
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but even it had been properly authorized, it could not have controlled the
section line location in dispute, because the surveyor had allowed his result
to be controlled entirely by the measurements of record, found on the
original GLO plat and in the original GLO field notes, rather than
recognizing and accepting the superior evidence of the original section line
location, which was presented by the physical evidence of the existing
section line road, and the testimony that supported it as the authentic original
location. The Court therefore upheld the decision of the lower court, that the
centerline of the existing road represented the true original section line
location, and marked Webster's easterly boundary, so the township could not
legally relocate the road 300 feet into his property, without completing a
condemnation action against him and compensating him for his loss in
accordance with the law. Since Webster had physically blocked White and
the township from taking any action however, and no road had actually been
built through his land, the Court found that he was not entitled to the damage
award that had been granted to him, so the lower court decision was
modified to reduce the damage award to the nominal level of one dollar.
Very interestingly, one Justice dissented from this decision of the Court,
expressing his opinion that in cases where the testimony concerning an
original corner location was in conflict, as was apparently the case in this
contest, the record information contained in the original field notes should
be considered superior to the physical and testimonial evidence relating to
the original corner or line locations, and should be treated as the controlling
evidence, stating that he would prefer to uphold the resurvey, as it had been
performed using the distances found in the field notes. In so stating, he
indicated that his position was based on the fact that using the field notes
"any competent surveyor can locate the points at which the mounds should
have been placed". The fatal flaw in his thinking of course, was the fact that
it makes no difference where the corners should have been placed, all that
matters is where they actually were placed during the original GLO survey,
and this constitutes the reason that physical evidence is always primary,
while evidence or record is necessarily secondary, so measurement evidence
can only become controlling in the complete absence of acceptable physical
evidence of the originally surveyed location on the ground. Fortunately, a
majority of the Court had the wisdom to realize that the measurements
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recorded during the original GLO surveys were frequently inaccurate, and
should not be elevated above physical or testimonial evidence effectively
locating the corners and lines of the original survey, as it was actually
executed, because the monuments set during the original survey form the
ultimate basis for reliance by the entrymen, regardless of any measurement
error that was present in the original survey work.
This dissent however, though perhaps seemingly insignificant at the
time, marked a divergence of judicial thought among the members of the
Court, that would only work itself out over the course of many ensuing
years, and further evidence of this split very soon appeared, when the case of
Dowdle v Cornue, yet another controversy arising from Minnehaha County,
arrived before the Court, just 3 months after the Webster case. Dowdle was
the owner of the southeast quarter of Section 5 in Mapleton Township, and
he was in a position that was analogous to that of Webster, since he was
engaged in a battle with Cornue, who was a township official supporting the
construction of a road on the east line of Section 5, which was alleged by
Cornue to lie west of the original east line of Section 5 claimed by Dowdle.
By means of an opinion written by the lone Justice who had stood against
the Webster decision, the Court ruled against Dowdle, upholding the right of
the township to build the section line road in question following a straight
line running all the way from the southeast corner of Section 32 to the
northeast corner of Section 5, because the county surveyor had testified that
the line was supposed to be one straight line for that full 6 miles. Dowdle
quite justifiably protested this outcome, and the Court reviewed the matter
again in 1897, but Dowdle was denied a rehearing and was again
vanquished, on the basis that the testimony of the county surveyor alone was
sufficient to negate any such claim by a private land owner, allowing the
presumption of correctness to shield the county surveyor's testimony,
rendering it effectively unimpeachable. This decision would not be the last
of it's kind, as we will subsequently note, to deviate from the court's
normally diligent protection of private land rights, in favor of expediting
public use of both land and water, but the Court would soon again reinforce
the cogent principles that it had wisely adhered to in deciding the Webster
case. In fact, on the same day that the Webster case was decided, two other
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boundary disputes, Bowman v McGilvray and Olander v Jacobson, were
also resolved by the Court, both of which had apparently resulted from the
same resurvey that had been analyzed by the Court in the Webster case, and
therefore involved conflicts of the same nature, over the location of section
lines, in unspecified locations elsewhere in the same township. Both of these
cases were summarily disposed of by the Court, stating only that the same
principles which controlled the outcome of the Webster case also controlled
all other such controversies caused by the erroneous 1893 resurvey, and both
of these results were dissented, on the same premise applied in dissenting the
Webster decision. Whether or not the resurvey that was rejected by the Court
in all of these cases represented the work of Van Antwerp is unknown, but it
bore the hallmarks of his independent and corrective approach to resurveys,
and the treatment of this resurvey by the majority of the Court was in
complete accord with the principles that had controlled the outcome of the
Arneson, Van Antwerp and Randall cases of the previous few years. There is
of course no legal basis upon which to set section corners or run section
lines where they "should have been", the challenge facing the truly
professional retracement surveyor is to develop the ability to recognize all
forms of valid boundary evidence, and to honor both the work of his
predecessors, and the rights of all land owners, by respecting all evidence of
the original corner and line locations, rather than altering the original lines
by setting out new corner positions, in locations that are devoid of original
evidence.
SEYMOUR v CLEVELAND (1896)
At this juncture, we reach the topic of adverse possession, and we
begin our review of the manner in which it has been applied by the Court,
evolving and migrating along the way, from a means of resolving title
conflicts, into a factor intruding upon the realm of boundary resolution.
There are many social and political factors underlying and supporting the
controversial doctrine of adverse possession, but the most basic concept
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embodied in it is the fact that physical possession of land can hold value as
evidence of ownership, and in fact it can often be the best evidence of
ownership, eventually becoming conclusive evidence with the passage of
time. The core element of adverse possession is not time however, it is the
exceedingly powerful principle of notice, since actual occupation and use of
land always provides physical notice, because openly productive use of land
is necessarily visible to all the world, while time serves merely to foreclose
any opportunities to dispute the validity of such affirmative occupation and
use of land. In addition, the ultimate goal of the doctrine is to protect those
who have acquired land in good faith, from charlatans and opportunists who
attempt to exploit questionable or dubious titles, by turning past errors into
devices with which to attack and oust innocent parties who hold flawed
titles, from land which such occupants have long understood to be their own.
It is this quest to assess the motivation of a party in possession that drives
the Court to focus upon and scrutinize the intentions of adverse claimants, in
search of evidence that their actions can be properly characterized as acts of
good faith, in the absence of which title cannot be acquired under any statute
of limitations designed to protect good faith possession. In Wood v Conrad
in 1891, the two litigants held competing sheriff's deeds to the same two
presumably typical adjoining lots in Rapid City, but Conrad had held
possession of the lots for a few years and he had made some improvements
to them. Though Wood held the junior deed, he successfully asserted that
Conrad's deed was invalid, and he was awarded ownership of the lots on that
basis by the trial court, but he was required to pay Conrad the value of the
improvements that Conrad had made to the land, on the basis that Conrad
had occupied and developed the lots acting in good faith. On appeal, the
Court utilized this scenario as an opportunity to define the essential linkage
between color of title and good faith, pointing out that color of title cannot
serve it's intended purpose, as evidence of good faith on the part of an
adverse possessor, unless the adverse claimant had valid grounds upon
which to rely upon the defective document representing his color of title.
The Court remanded the case back to the trial court, and upon retrial it was
determined that Conrad had not in fact relied upon his deed in good faith,
having been aware that it was invalid, so it could not operate in support of
his claim to the lots, therefore he was not entitled to any compensation for
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his improvements, and the Court upheld that decision upon a second appeal
in 1892. In the case we are about to review, we will watch the Court address
each of these same basic elements that form the foundation of adverse
possession, in the context of a dispute between a grantor and a grantee.
1893 - Seymour was the owner of an apparently typical residential lot
in Milbank. The size, location and origin of the lot itself are unknown,
but those factors are not relevant in any respect to the controversy that
subsequently developed over it, and Seymour's ownership of the lot,
which was evidently still vacant at this time, was unquestioned.
Seymour agreed to sell the lot to Cleveland, who was a married
woman, and a typical contract for deed was entered and signed by
both parties, which included the usual provisions for regular payments
to be made to Seymour by Cleveland, and for Seymour to deed the lot
to Cleveland, upon her completion of the payments. Cleveland made a
small down payment to Seymour, she then proceeded to take
possession of the lot, and with the assistance of her husband, she
erected a house and numerous related improvements on the lot.
1894 - More than a year after the contract for deed had been signed,
the Clevelands were living on the lot, but they had made none of their
appointed payments to Seymour, so they were in default under the
express terms of their contract. Seymour apparently exhausted his
patience and grew tired of waiting for his money, so he demanded that
the Clevelands begin to make their payments in a timely manner, as
they were contractually bound to do, but the Clevelands informed him
that they were unable to do so. Seymour then informed the Clevelands
that he intended to terminate the contract for deed, due to the fact that
they were in violation of it, and he ordered them off the lot. The
Clevelands however, claimed that they had the right to remain there,
despite their failure to make their payments, and they refused to
forsake their new home, so Seymour filed an action against the
Clevelands, seeking to compel them to vacate the lot.
Seymour simply argued that a valid contract had been made, and he
had upheld his part of the agreement, but the Clevelands were in violation of
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their responsibility under the contract, so he had the right to eject them from
the lot, without compensating them for any of the improvements that they
had made to the lot. The Clevelands admitted that they had entered a
contractual agreement with Seymour, and that they had not made any of the
payments that they had agreed to make, but they argued that since they had
made very substantial and valuable improvements to the lot, their occupation
and use of the lot had become adverse to the ownership of the lot by
Seymour, therefore he could only recover possession of the lot from them by
paying them the full value of all the improvements that they had placed upon
the lot. The Clevelands further argued that all of their possession of the lot
had been under color of title, by virtue of their contract for deed, which they
asserted was equivalent to a deed, for that purpose. The trial court decreed
that Seymour was still the owner of the lot, but agreed with the Clevelands
that Seymour must compensate them for all of their improvements, in order
to legally terminate the contract for deed and require them to turn possession
of the premises over to him.
At the time this case took place, a statute was already in place which
required any owner of record, such as Seymour, to compensate any party
who had adversely possessed any real property owned by him in good faith
for a length of time that was insufficient to acquire the land, for any
improvements made upon the land at issue by the adverse possessor, before
recovering the land from the adverse possessor. This statute was applicable
to those situations where an adverse possessor was unable to successfully
acquire title, due to being discovered and confronted with ejection by the
record owner, prior to the completion of the ten year statutory period, that
was required to perfect title and to bar any claim for recovery of the land,
through adverse possession. For this reason, although she knew that she had
not been occupying the lot nearly long enough to have acquired it by adverse
possession, it was nevertheless advantageous for Cleveland to paint herself
as an adverse possessor, because if she could successfully do so, Seymour
would be legally required to compensate her for all of the improvements that
existed on the lot in question. Unfortunately for her, the Court readily saw
through her scheme, and pointed out to her that there were three reasons why
she could not qualify as an adverse possessor acting in good faith. The first
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and most basic reason was that her possession of the lot was never adverse
in nature to begin with, because she had taken possession of it pursuant to a
fully documented agreement with the lot's record owner, and in order to be
adverse, possession must be antagonistic to the title of the record owner.
Upon entering her contract with Seymour, Cleveland had formally
recognized him as the owner of the lot, so all of her subsequent actions were
subservient to his ownership of the lot, and they were made in subordination
to Seymour's title to the lot, nor had Cleveland's failure to make her
payments created any adverse relationship between Seymour and herself,
therefore no genuinely adverse condition had ever existed between the
litigants. The second reason, the Court indicated, was that in order to show
their good faith, an adverse possessor must show evidence supporting their
belief that they own the land in dispute, in the form of some document
supporting that belief, which is known as color of title, but a contract for
deed cannot serve as color of title, because it does not represent a completed
conveyance, so Cleveland had no document that could serve as a basis upon
which she could claim ownership of the lot. Finally and most importantly,
the Court observed, in view of her utter failure to meet these two statutory
requirements, she had clearly not acted in good faith, and no party who has
acted in bad faith can ever obtain the protection of a statute that was
intended to reward only those who have acted in good faith. The Court took
this opportunity to expound upon it's view of these basic ground rules,
relating to all claims of adverse possession performed in good faith, for the
edification of Cleveland and others, as follows:
“One who enters upon real property under a contract of
purchase occupies the position of a licensee ... Cleveland's entry
into possession was under and by virtue of the contract ... In
such cases the vendee cannot dispute the title of the vendor
anymore than a lessee can question the title of his lessor ...
Upon default in payment ... the possession becomes tortious,
and the vendor may at once bring ejectment ... defendants do
not claim under color of title, as they do not set up or claim any
other title than that of a contract for deed ... one holding under
color of title must show a conveyance apparently valid upon it's
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face ... color of title is that which in appearance is title, but
which in reality is no title ... which by reason of some defect,
not apparent on it's face, does not in fact amount to title ... the
claim of the defendants is not adverse to the claim of the
plaintiff, but under and in subordination to such claim ... they
claim under no conveyance, but simply an agreement to convey
... they do not come within the provisions of the statute ... they
had no title or claim of title adverse to the plaintiff ... The
evident purpose and design of the provisions of the statute
referred to are to protect one who has made improvements upon
land which has been conveyed to him, and which he in good
faith believes vests the title in him, but which, upon
investigation, proves to be an invalid title."
As indicated above, the Court had quite readily observed that
Cleveland's actions were not those of an innocent party acting in good faith,
and this perception of her real motivation doomed her chances of prevailing,
when she was finally brought before the Court, by Seymour's legal action
against her. It was obvious that she had entered the contract with Seymour
intent upon defrauding him, by leveraging the existing statute protecting
good faith possession of land, which could not otherwise be legally
protected. She had apparently never intended to make any payments on the
lot, instead she and her husband had set out to take deliberate advantage of
Seymour's kindness and patience, by hastily constructing as many
improvements upon the lot as possible, in an effort to increase it's value to
such an extent that he could not afford to compensate them for what they
had done, hoping that he would then essentially be cornered into allowing
them to go on occupying the lot indefinitely without making any payments.
The Court never looks kindly or charitably upon such schemes however, and
invariably finds a legal or equitable pathway by which to negate the impact
of any such acts, once they have been exposed in the light of justice. Those
who desire the protection of the law, or who would seek shelter under any of
the many principles of equity, must come before the Court with clean hands,
and must be prepared to demonstrate that the balance of equity and good
faith is on their side, which Cleveland very clearly failed to do in this
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instance, and this highly important lesson should be very well noted and
heeded by all prospective litigants, particularly those whose arguments rest
upon legal technicalities. On that basis, the Court upheld the lower court's
ruling that Seymour was the owner of the lot, but struck down the award that
had been granted by the lower court to the Clevelands for their
improvements, since they had been exposed as perpetrators of a fraud, so
they failed to qualify for the compensation that was legally due to legitimate
but unsuccessful adverse possessors. The most important concept illustrated
by this case is the basic idea that adverse rights must truly be adverse in
character, which means they cannot emanate from, or develop as a result or
consequence of, any form of agreement. Where an agreement of any kind
has been reached, entered or made, no adverse rights can exist between the
parties to the agreement, because agreement and adversity, by definition,
represent directly opposing concepts. The existence of a state of agreement
represents the elimination of any previously existing adverse relations, while
an adversarial relationship represents the absence of any agreement, so in
theory the two concepts are mutually exclusive. Nevertheless, since reality is
always far more complex than theory, agreements can play a role in modern
adverse possession cases, particularly when there is evidence that a mistake
of some kind was made, or that an unknown error was involved in the
making of an agreement, and we shall later examine how the Court has
chosen to deal with such situations.
A few other cases from the early years of the Court, that are highly
relevant to the basic principles underlying the doctrine of adverse
possession, are also noteworthy at this point, including the 1886 case of Gale
v Shillock, which was a typical title conflict, involving competing deeds to a
quarter section, which had passed through many hands and had been claimed
by various parties, leaving the litigants in contention over whose title was
truly superior and therefore signified genuine ownership of the land at issue.
Gale, who was the party in possession, prevailed at the trial court level over
a group including Shillock who had challenged the validity of Gale's chain
of title, and the Court initially upheld that result, but just two days later the
Court revisited the matter, addressing in greater detail the charge made by
the Shillock group that Gale's title was invalid, and his possession was
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insufficient, because he had made actual use of only a fraction of the land
comprising the quarter section at issue. Upon this second review of the
controversy, the Court again upheld Gale's ownership of the entire quarter,
taking the position that his use of any portion of the quarter, however limited
in extent, under color of title to the entire quarter, had served as effective
notice to all the world of his claim to the entire quarter, making the validity
of the origin of his title irrelevant, because the Shillock group had physical
notice of Gale's presence upon the land, making it impossible for them to
successfully claim to have legitimately acquired the quarter. In so holding,
the Court cited several decisions to the same effect from California and New
York, adopting the powerful principle of inquiry notice, which would go on
to form a cornerstone of the legal responsibilities of all grantees of land,
constituting a decisive factor in several cases that we will subsequently
encounter, and in 1892 this ruling of the Court was upheld by the Supreme
Court of the United States on further appeal by the Shillock group,
conclusively establishing the gravity of the concept of inquiry notice.
In 1890, the Court again placed great reliance and emphasis upon the
concept of notice, in deciding the case of Betts v Letcher, in the specific
context of a dispute over the efficacy and applicability of recordation
statutes. Betts and Letcher were friends who decided to go into business as
partners, so they entered a written but unrecorded agreement, stating among
other things that Letcher would acquire a certain lot from Betts and build a
store on it, and he would then grant a half interest in the store and the lot to
Betts. Betts conveyed the lot in question to Letcher, the store was built as
agreed, and the partners went into the hardware business together, but
business was poor, putting Letcher in financial difficulty. In apparent
desperation, Letcher decided to bail out of the situation, so he conveyed the
store and the lot to his mother, without informing Betts, and the property
was then lost to creditors. Betts then filed an action against his former
partner, asserting that the conveyance from Letcher to his mother had been
null and void, being in violation of the unrecorded conveyance agreement,
seeking to obtain the half interest in the property that Betts maintained was
due to him under that agreement. The Court upheld a lower court decision in
favor of Betts, on the grounds that Letcher's mother was not an innocent
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grantee acting in good faith when she acquired the property from her son,
because she had knowledge of the business partnership, including the
unrecorded agreement, between her son and Betts. Nullifying the
conveyance to Letcher's mother, and restoring ownership of a half interest in
the property to Betts, the Court very eloquently explained that:
“Notice of a prior unrecorded conveyance, or of any title, legal
or equitable, to the premises, or knowledge and notice of any
facts which would put a prudent person upon inquiry,
impeaches the good faith of the subsequent purchaser ... inquiry
... springs from the apparent, not the true, relation that the
person in possession bears to the title. It rests upon the theory
that actual and visible possession ... cannot properly escape the
observation of a subsequent purchaser ... failure to make such
inquiry, however, is regarded as an intentional avoidance of the
truth ... and voluntary ignorance ... deprives the subsequent
party of the character of a bona fide purchaser."
The Court had thereby established that physical notice is equal or
superior to notice created by virtue of recordation, making reliance upon
recorded information alone, as the sole indication of the existence of land
rights, quite unwise, since in the view of the Court, the recordation statutes
are of no assistance to anyone whose alleged acquisition of any land or land
rights was lacking in the most essential ingredient of all legitimate
conveyances, which is the element of good faith. The relevance or
applicability of a document as color of title was once again in focus in
Meadows v Osterkamp, which first came before the Court in 1900,
introducing the issues that are created by the issuance of a tax deed that
subsequently proves to have been illegitimate, due to the presence of any
one of many kinds of flaws that can prove to be fatal to a tax deed, making
such deeds a common point of origin of problematic titles, from which a
great many adverse possession claims have sprung. Osterkamp was an
innocent recipient of a fatally flawed tax deed, who had occupied and
improved the subject property in the full belief that he had legitimately
acquired it, until Meadows came forth, correctly pointing out that the tax
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deed was void and thereby successfully retaining his ownership of the
subject property. Upon quieting title in Meadows however, the trial court
rejected Osterkamp's claim that he was entitled to payment from Meadows
for the improvements, including a house, that had been erected by
Osterkamp, pursuant to the decisions of the Court in the Wood and Seymour
cases. The Court reversed this decision however, finding that Osterkamp,
unlike either Conrad in the Wood case or Cleveland in the Seymour case,
had possessed the subject property in complete good faith, having been the
victim of bungling of the tax foreclosure process by others, so Osterkamp
was fully entitled to the compensation that he had requested from Meadows.
In so ruling, the Court set forth the important principle that good faith is
always presumed, while neither bad faith nor fraud are ever presumed, and
must always be proven, holding that a void tax deed represents
presumptively valid color of title, unless or until it is proven that the holder
of such a deed was aware that it was invalid, and the Court again reiterated
this position when the case returned to the Court on a second appeal in 1905.
Note that no boundary issues were presented in any of these cases, the sole
issue in every instance was the quality of the competing titles and the fact of
ownership, while the physical extent of these titles was not a matter in
contention, but the fundamental pieces were now in place for the
adjudication of future possession based land rights litigation, and with the
dawn of the new century, the transition of adverse possession into a means
of boundary resolution was on the horizon, as we shall soon observe.
NOVOTNY v DANFORTH (1896)
Resuming our study of the Court's treatment of issues arising from
legal descriptions, we here encounter a case that was really focused upon the
consequences of a construction fiasco, but which also provides a fine
example of the manner in which the Court handles descriptions that contain
conflicting language. One of the many problems frequently noted when
reading legal descriptions is that many grantors, inexperienced in creating
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sound legal descriptions, foolishly attempt to define property that they intend
to convey using terms, phrases and clauses that have the effect or
overlapping or duplicating each other, failing to observe the fundamental
rule that simplicity and clarity are of great value in creating proper legal
descriptions, while excess and redundancy are of no benefit and can even be
harmful. Here the Court wisely rectifies such a problematic description, in
order to disarm an attacker whose assault upon the description in question
points to the meaning that he would personally prefer to derive from it, to
suit his own purposes, which as we will learn, as we move through the
decades, is not a tactic that the Court finds persuasive. While it proved to be
unnecessary for the Court to reform the description in contention in this
case, the Court had already addressed the concept of description reformation
in principle by this point in time, in the 1891 case of MacVeagh v Burns.
MacVeagh acquired an unspecified tract in Deadwood, which unknown to
him contained a description error, since the tie to the POB of his description
called for the wrong corner of a nearby mineral claim, and for unknown
reasons Burns challenged the validity of MacVeagh's ownership, based on
this mistake, which amounted to a single incorrect digit, claiming that
MacVeagh's description was statutorily void due to the presence of that
error. Citing description reformation cases from Florida, Illinois and Indiana,
the Court very wisely adopted the position that any description error is
subject to correction, if it can be shown to have been a genuinely mutual
mistake, stating that such corrections are entirely within the law, since they
simply "make the deed express just what the parties to it originally
intended", and the Court has remained open to such appropriate description
reformation ever since. In Laird-Norton v Hopkins in 1894 however, LairdNorton sought to foreclose a lien upon a typical city lot that was owned by
Hopkins, but as an apparent result of carelessness in the description of the
property to which the lien applied, the description incorrectly stated the
name of the subdivision containing the lot. Since the erroneous description
had been prepared either by or for Laird-Norton, the Court upheld a lower
court decision that the lien had been rendered utterly null and void by that
mistake, on the basis that such a unilateral description error is not typically
subject to correction, and moreover, the party who was responsible for the
existence of such an error must bear the consequences of it. The rule thereby
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adopted by the Court, that the party who either created a mistaken
description, or directed that it be created, must suffer any loss resulting from
any inadequacy subsequently discovered in it, usually impacts grantors, who
are responsible for the legal descriptions used in most conveyances, but it
can also adversely impact a grantee, if he agrees to accept the burden of
providing the description or descriptions required for a given conveyance.
Prior to 1896 - A corporation known as Christ's Church owned Lots
10 & 11 in Block 25 in Yankton, which were apparently typical
adjoining rectangular platted lots. The width of the lots is unknown,
but they had been platted as 150 feet in length, with their long axis
running east and west. Lot 10 was the southerly lot, and it was
bounded on the south by a city street, and bounded on the north by
Lot 11, so the two lots comprised the southerly end of the block. The
church decided to dispose of these lots, which were apparently vacant,
at an unspecified time, and subsequently sold a portion of the west
half of both lots to Novotny, and a portion of the east half of both lots
to Danforth. Whether the church retained the remaining portions of
the platted lots or sold them off to other parties is unknown, but this
was not a factor in the eventual controversy between these two men,
since the dispute that subsequently arose was limited to the properties
acquired by Novotny and Danforth. Novotny erected a brick building
on his portion of these two lots, placing the face of the east wall of his
building on the dividing line between the east and west halves, as
closely as he could determine the location of that line. There is no
indication that the line between the lands of Novotny and Danforth
was ever surveyed on the ground, but the physical location of that line
was never disputed, since Danforth accepted the east face of
Novotny's building as correctly marking the boundary between their
properties.
1896 - Danforth decided to erect a building on his land, and he wanted
to place it directly against Novotny's building, but he wanted to have a
deeper cellar, which would extend well below the elevation of
Novotny's existing foundation, and he realized that this would make
the construction of the proposed building potentially dangerous to
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Novotny's building, so he asked Novotny to approve the proposed
work. Novotny approved the construction of Danforth's building,
directly up against his own building, and in addition, he asked
Valentine, who was Danforth's building contractor, to extend the
depth of Novotny's cellar, to match the deeper elevation shown on
Danforth's plans, and Valentine agreed to do so. The excavation work
for Danforth's building was successfully completed, without any
damage to Novotny's building, but when Valentine began the
additional excavation that had been requested by Novotny, directly
beneath the east wall of his existing building, the entire east wall
collapsed. Evidently no one was hurt in the collapse, but Novotny was
obviously upset by what had happened, so he decided to file an action
against both Danforth and Valentine, seeking compensation for the
damage that had been done to his building. In the wake of the
collapse, and in apparent preparation for the coming legal battle,
Novotny had Lots 10 and 11 surveyed, and the survey revealed that
the lots were actually 151.1 feet in length, rather than 150 feet as
platted.
Novotny argued that Danforth and Valentine were fully responsible
for the damage that his building had suffered, and should therefore be
required to pay for it's complete reconstruction. In addition, since Novotny
had discovered from the survey that the original lots were actually longer
than their platted length, he argued that based on the legal descriptions held
by both Danforth and himself, a gap actually existed between their
properties, so the excavation work that had been done by Valentine for
Danforth's building amounted to trespassing on the gap between their lands,
and this act of trespassing was the actual cause of the destruction of his wall.
Danforth and Valentine argued that they were not responsible for the
damage to Novotny's building, because he had approved their work, and in
fact it was the expanded scope of the work, which had been ordered by
Novotny himself and had been done under his instructions, that had been the
true cause of the damage to his building, so they could not be held liable for
any of the damage. Danforth further argued that despite the excess in the
length of the lots, no gap ever existed between his property and that of
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Novotny, so he was not guilty of trespassing, and all of the excavation work
that had been done by Valentine at his request was done on Danforth's own
property. The trial court agreed with Danforth that no gap existed between
the properties in question, so all of the excavation work done for him had
been properly and legitimately executed on his own land, also deciding that
Novotny himself was fully responsible for the loss of his own wall, so he
was entitled to no compensation from either Danforth or Valentine.
The primary issue in controversy in this case was of course the
question of who was really responsible for the unfortunate incident that had
taken place, and the Court agreed with the lower court that it was Novotny's
own foolish idea, directing Valentine to extend the intended excavation
directly under his own existing building foundation, that had been the real
cause of the damage that Novotny had sustained, so he could not pass the
responsibility for the results of his own poor decision off onto either
Danforth or Valentine. The building plan proposed by Danforth, and put into
effect by Valentine, although perhaps somewhat risky, was not illegal in any
respect, and it could have been carried out successfully, if Novotny had not
seen fit to interfere, in an attempt to take advantage of their work for his own
benefit, so the Court quite justifiably upheld the lower court decision against
him. This incident alone, and the resolution of Novotny's claim, would be of
little interest or relevance to land surveyors, since no surveyors were
accused of any kind of involvement in the construction work that resulted in
the incident, if Novotny had not attempted to support his position by
bringing the legal descriptions of the parties into play. His decision to do so
however, provided the Court with a superb opportunity to clarify the manner
in which deficiencies and discrepancies in legal descriptions are evaluated
and adjudicated. The Court's analysis of the two legal descriptions at issue,
in the context of the actual circumstances, provides an excellent
demonstration of how the Court employs both legal and equitable principles
as tools, to resolve all such conflicts in accord with the ends of justice.
Cognizant that the lots were originally believed to be 150 feet in length as
platted, by the grantor of both Novotny and Danforth, it was perfectly clear
to the Court that their prior corporate owner, upon deciding to sell off the
lots, had intended to make 6 smaller parcels out of the 2 platted lots, by
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splitting the total of 150 feet of frontage along the south side of Lot 10, into
6 equal divisions of 25 feet each, all running back to the rear of the new
parcels, at the north line of Lot 11, in order to optimize their profit in
disposing of the land. Neither the church, acting as the grantor, nor any of
their grantees, including Novotny and Danforth, had realized that the platted
lots contained any amount more or less than 150 feet, all of the parties had
proceeded on the basis that each conveyance contained a nominal 25 feet,
and just as importantly, that each 25 foot parcel constituted an equal share of
the original lots, which was bounded by the adjoining parcels on each side of
it, so no gaps or overlaps had been either anticipated or intended. Since the
intent of all of the parties to the conveyances that had created the new
parcels was fully evident, the plain task of the trial court had simply been to
implement a proper resolution of the conflict, in accord with the intent that
was clearly manifested in the relevant descriptions, which the Court
proceeded to assess as follows:
“The plaintiff's deed to his premises described the property as
the E. 1/3 of the W. 1/2 of Lots 10 and 11 in Block 25 of the
City of Yankton. Danforth's deed to his property describes his
lot as the W. 1/3 of the E. 1/2 of Lots 10 and 11 of Block 25 ...
but ... In addition to the general description in Danforth's deed
is the following description: Beginning on the north line of
Third Street, at a point fifty feet westerly from the southeast
corner of said Lot Ten ... The plaintiff therefore contended that
there was a strip of land 6 or more inches in width between the
property of the plaintiff and Danforth's property, and,
consequently, Danforth was not a coterminous owner, and
therefore, when excavating next to plaintiff's wall, he and his
co-defendants were trespassers ... the second or specific
description in the deed described land to a portion of which the
party conveying had no title, and omitted a portion to which the
grantor had title. The first description in the deed was correct,
and conveyed exactly what the party had to convey, and
doubtless, intended to convey ... They no doubt supposed that
the description by metes and bounds covered the same property
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as the first clause in the deed, and it would have done so had the
lot been only 150 feet in length ... the deed did actually carry
out the intention of the parties by the first description. In
construing deeds ... it is the duty of the court to carry into effect
the intention of the parties ... The court, therefore, very properly
disregarded the second description in the deed, that clearly did
not express the real intention of the parties ... Novotny and the
defendant Danforth are to be regarded as coterminous owners."
The most essential principle exemplified and put into practice by the
Court in this case, is the concept that intent is paramount, which we have
already previously noted in our review of the Evenson case, and which we
will see very frequently appear as a decisive factor in many future cases.
This dominant principle applies not only to the resolution of conflicts
relating to descriptions, but indeed to virtually every aspect of land rights,
including every situation involving a conveyance or contract of any kind,
and it is particularly applicable to all interactions between a grantor and a
grantee, since intentions play a vital role in the critical determination of their
good faith. The rule applied by the trial court, and approved here by the
Court, to effectively strike out and negate the offending portion of
Danforth's description, is known as the rule of surplusage, which dictates
that nothing following an adequate description can operate to surreptitiously
destroy, or even erode, the foregoing legitimate portion of the description, so
any subsequent language that has any such effect can, and in fact must, be
ignored and discarded. This useful tool of law, which serves to protect
grantees from deception through the use of technical language in the
preparation of legal descriptions, like most of it's brethren, has it's origin in
common law principles of equity, but it had already been codified into the
statutes of South Dakota by the time of this case. The thrust of the
surplusage rule, as it was employed here, is to counteract any potentially
negative effects of the equally well known rule that the particular typically
controls over the general, which has often been cited in support of the
description form known as metes and bounds. This case very poignantly
illustrates however, that a metes and bounds description will not always
control, because bearings and distances will not be allowed to control over
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general language, in those instances where the general language more
accurately embodies the true intent of the parties. Here, Novotny attempted
to point to the particular portion of Danforth's description as controlling,
asserting that the first part of that description should be ignored, but the
Court readily saw that Novotny had taken this position opportunistically,
only because he supposed that it would operate to his advantage, so the
Court wisely upheld the surplusage rule, sweeping aside the courses and
distances, and allowing each lot to absorb it's proportional share of the
excess length, preventing the creation of any gaps. The position taken by the
Court in that regard here is highly typical of the efforts of virtually all courts,
the objective always being to eliminate or negate the value of any
description language that tends to create potentially troublesome gaps or
overlaps, by the use of whatever judicial device may most expediently
accomplish that purpose. The obvious lesson for surveyors here is that the
unnecessary use of the metes and bounds description form can very often do
more harm than good, and this a perfect illustration of a situation in which
that was precisely the case. The false 50 foot distance, unwisely used to
define the POB of Danforth's description, created a window of opportunity,
that invited Novotny to attempt to use that part of Danforth's description as a
weapon against him, which if not for the wisdom shown by both the trial
court and the Court in properly resolving the matter, could have been
unjustly damaging to Danforth.
Also in 1896, on the subject of description content, the Court
emphasized the need for correctness in describing property conveyed by tax
deed, in the case of Van Cise v Carter. Van Cise had acquired a tract a few
miles outside Lead City that had been patented under the description "Santa
Fe Load Mining Claim, Lot No. 402, embracing 8.80 acres", but he had
neglected to pay taxes on it, and it had therefore been conveyed to Carter by
tax deed. For unknown reasons however, the assessor had treated the tract as
if it were located in Lead City, and the original description of the tract was
not used when the tax deed was prepared, instead the tract was described in
the tax deed as "The Santa Fe Load, situated in School District No. 75 and in
Road District No. 3". The trial court found this description to be accurate, as
far as it went, and therefore acceptable, but the Court categorically rejected
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it, declaring the tax deed void, and restoring ownership of the tract to Van
Cise, stating that any description which fails to identify the subject property
by reference to the PLSS, or by reference to a platted lot and block, or by
metes and bounds, cannot stand as a valid legal description, for uncertainty
of location, characterizing the description in question as "confusing,
misleading and deceptive". Again stressing the critical need for both
correctness and completeness of descriptions used for purposes of tax
conveyances, the Court struck down another description as indefinite and
uncertain in Turner v Hand County in 1898. In that case, Turner was the
owner of the south half of the southwest quarter and the south half of the
southeast quarter of a regular section, but in both the county tax records and
the deed by which the county allegedly acquired the land for delinquent
taxes, it was described only with a single continuous string of figures
reading "s2se&s2sw" followed by the standard section, township and range
designations. Criticizing this particularly cryptic notation as "intolerable",
the Court also reversed this lower court ruling, holding that the tax deed
prepared by Hand County was a nullity, and Turner was therefore still the
owner of the inadequately described land. Yet again in 1902, another highly
problematic description came to the attention of the Court, in the case of
Stokes v Allen, this time in the context of a description exception
necessitated by the presence of a railroad right-of-way evidently passing
through the subject property. The description of the land at issue in this
instance, which had been conveyed by Codington County to Allen by means
of a tax deed, read only "SW4NE4&W2SE4 Less R.W. D.C. Ry." with no
designation of section, township or range. Indicating that even if the section,
township and range were not absent, the description would still be void,
because the text that was intended to represent the railroad right-of-way
exception was "unintelligible", the Court upheld the lower court decision,
which had invalidated the description, allowing Stokes to regain the land in
controversy. After several years of such harsh criticism from the Court for
their weak description efforts, those responsible for preparing proper
descriptions eventually began to get the Court's message, and thanks to the
relentless drumbeat hammered out by the Court, demanding descriptions of
optimum clarity, the era of modern legal description standards was finally
approaching.
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ROBERTS v HOLLIDAY (1898)
While many disputes and other issues concerning boundaries of land
often arise between owners of adjoining lands, whose chains of title are
completely unrelated, as surveyors are well aware, a high percentage of all
boundary conflicts actually take place between parties whose titles are
related in some way. For example, one of the most common scenarios in
which boundary problems are likely to occur is where one party has divided
their land in some manner and then conveyed the various parts of it to
different parties, resulting in controversy between two or more of the
grantees, over where their mutual grantor intended their boundaries to be. In
such cases, the battle takes place between the grantees alone, with no
involvement of the grantor, often long after the grantor is dead, so the
grantor has no stake in the outcome, even though the grantor was ironically
the party who created the problem, and we will later review cases of that
nature. Another very common source of boundary disputes however, is poor
or inaccurate communication regarding boundaries between grantors and
their grantees, which can result either in immediate problems that cause
disagreements between the original grantor and grantee, as we will see in
this case, or in latent boundary issues that remain undetected for many years,
but eventually arise to plague and victimize successors of the original
grantor and grantee. The various aspects of the relations between grantors
and their grantees are undoubtedly among the most vital and important
factors in the adjudication of land rights, and such relations are incessantly
under consideration by the Court, as it endeavors to insure that the true
intentions of the original parties are implemented, through the wise
application of the appropriate legal and equitable principles provided by the
Court. For that reason, several cases featuring conflicts between grantors and
grantees, over both boundaries and easements, have been included in this
book, to bring land surveyors to a fuller understanding and appreciation of
the significance of the acts of such parties, and the potential impact that all
of their acts and omissions have upon their own land rights, and just as
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importantly, the rights of their successors, who as the Court often reminds
us, simply stand in the shoes of their predecessors. In the case we are about
to review, an additional factor of interest to land surveyors, as professionals
operating in the field of land rights, is also present, since the grantor in this
case is represented by an agent, who becomes a defendant himself, as a
result of actions that he has taken on behalf of the grantor. As previously
mentioned herein, the Court has never dealt directly with the specific
question of professional negligence or professional liability in the context of
a particular survey or a particular surveyor, but many other professionals
have been held liable for their acts or omissions when communicating with
innocent parties about land rights, such as boundary locations in this
instance, making the position on the legal significance of all such
communication taken by the Court potentially relevant to surveyors as well.
1893 - Warren was the owner of an unspecified quarter section
located in Brookings County, consisting of undeveloped land with a
railroad right-of-way running through it, part of which was suitable
for agricultural use, but part of which was too rocky to be useful.
Warren evidently lived elsewhere, and she informed Holliday, who
was a real estate agent based in Brookings, that she would like to sell
the quarter section, so he agreed to attempt to find a buyer for her and
show the land on her behalf. Roberts, who was a resident of
Minnesota, arrived in Brookings and informed Holliday that he was
interested in acquiring some good agricultural land in the area.
Holliday took Roberts out to see Warren's land, but Holliday was
uncertain as to the exact location of the boundaries of the quarter,
apparently never having seen Warren's land previously himself. The
two men apparently made no attempt to locate any of the corners of
the quarter section, they simply drove to a point somewhere near the
center of the quarter, and attempted to estimate the location of it's
boundaries from that single vantage point, since the land was open
enough to be fully visible from that spot. Holliday evidently had only
a general idea that the railroad ran northerly through the easterly part
of the quarter, yet he ventured to point out a certain fence as marking
the west boundary of the quarter, and he then also told Roberts that
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the quarter extended only a short distance east of the tracks. The
boundaries pointed out by Holliday were very attractive to Roberts,
since Roberts could see that the land east of the tracks was
unattractive, being rough, hilly and rocky, so based on the boundaries
pointed out to him, Roberts agreed to buy the land, and he paid
Holliday the asking price. Roberts then returned to Minnesota,
Holliday forwarded the money paid by Roberts to Warren, less his
commission, Warren executed a deed to Roberts, and Roberts soon
returned to South Dakota to take possession of the land that he had
bought. Roberts soon discovered however, that Holliday had
misinformed him about the boundaries of the quarter. The fence
pointed out by Holliday was actually several hundred feet west of the
true west line of the quarter, which meant that the quarter actually
extended several hundred feet east of the railroad, and included much
of the rocky and useless ground. Rather than being comprised entirely
of good cropland, as indicated by Holliday, nearly half of the quarter
was poor land, which was unfit for the use that Roberts had intended
to make of it, so he deeded the quarter back to Warren, who willingly
took it back from him, and refunded to Roberts her portion of the
money that he had paid. Holliday however, refused to refund the
portion of the purchase price that he had retained as his commission to
Roberts, so Roberts filed an action against him to compel him to
return the balance of the purchase price.
Roberts argued that Holliday had provided him with misleading
information, regarding the location of the boundaries of the land to be
conveyed, and he had relied fully upon the correctness of the representations
concerning the boundary locations made by Holliday, and he would never
have purchased the land if he had been correctly informed of it's true
boundaries, so Holliday should be required to refund his commission in full
to Roberts. Holliday did not deny that he had attempted to point out the
boundaries of the land at issue to Roberts, but he argued that if anything he
had said concerning those boundaries was incorrect, the error was
unintentional on his part, and under the rule of caveat emptor, it was the
responsibility of Roberts, as the buyer of the land, to fully verify and
85
substantiate it's true boundaries, rather than simply relying upon what he had
been told, so Holliday was under no obligation to provide Roberts with a
refund. The trial court ruled that Roberts was entitled to rely fully on what
Holliday had told him regarding the boundaries of the quarter, and Roberts
was not obligated to make any further inquiry into the actual boundary
locations himself, so Holliday was bound to make Roberts whole, and
Holliday was not entitled to retain any of the money that had been paid to
him by Roberts.
At first glance, the reaction of the typical land surveyor to a situation
such as this one, may be to point out that both Roberts and Holliday were
clearly negligent, because it was obviously quite foolish for these men to
imagine that they could judge the location of all the boundaries of the
quarter section in controversy, with any reasonable accuracy, from one spot
in the center of it, without ever even looking for any monuments at all, and
that is certainly true. However, as most surveyor's realize, people very often
attempt to estimate boundary locations, and draw false conclusions about
boundaries, based on insufficient evidence, or even sheer speculation,
because most people naturally do not have the surveyor's knowledge and
appreciation of the danger that can result from doing so, frequently leading
to conflicts such as this one, requiring judicial resolution. The Court
invariably strives to deal with the consequences of such unwise behavior in a
manner that is just and equitable, so the Court always takes the relationship
between the parties, and the respective roles they play in that relationship,
into consideration, in order to properly determine which party must bear the
consequences of any failures or mistakes that were made during the
conveyance and acquisition process. In this case, Roberts was a genuinely
innocent grantee, completely unfamiliar with the area in which the land at
issue was situated. Holliday was evidently also somewhat unfamiliar with
the particular section in question, but it was within his area of professional
practice, so he bore a distinctly greater burden of knowledge relating to the
land itself than did Roberts. Roberts recognized that Holliday was a
professional, with experience in land transactions, which is why Roberts had
come to him, so when the two men visited the site together, Roberts had the
right to count on Holliday to conduct himself as an ethical professional,
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which required Holliday, among other things, to resist the temptation to
make any potentially misleading statements. It may be true that Holliday
made no intentionally deceptive statements about any of the boundaries
involved, and fully believed everything he told Roberts, but his words
operated as an inducement to Roberts, the Court noted, directly influencing
his decision to buy the land, which turned out to be of little value. Most
critically, the words of Holliday were entirely voluntary, if he had simply
said nothing, Roberts would have been compelled to locate the true
boundaries of the quarter by some other means, such as engaging a land
surveyor, but Holliday voluntarily interposed his own opinion, thereby
eliminating the obligation of Roberts to seek further information. If Holliday
was actually uncertain about the true boundaries of the quarter, which turned
out to be the case, it was his burden as a professional to remain silent, in
order to avoid any chance of misleading an innocent party who was clearly
relying upon him. The Court had no sympathy for Holliday, and agreed fully
with the lower court that his position, attempting to shed his own
professional burden, and shift it to Roberts, was utterly groundless and
unsupportable:
“A purchaser of real estate is entitled to rely on the
representations of an agent ... as to location, and is not bound
by the doctrine of caveat emptor to make further inquiries as to
its boundaries ... the tendency of modern authority is to
encroach upon the old doctrine of caveat emptor, and place
reasonable responsibility upon the seller, there is no merit in the
contention that respondent was duty bound to make further
inquiry and investigation as to the boundaries of the land ...
appellant's representations were the cause of his omission ...
Respondent had the right to confidently rely upon every
material representation made by the appellant."
Caveat emptor, which translates as "let the buyer beware", is a
venerable and useful maxim, intended to encourage prudence and
forbearance, on the part of those who might otherwise hastily engage in
unwise transactions, but of course it cannot operate as a means of
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justification for deception of any kind, intentional or otherwise. In the arena
of land rights, the modern judicial trend, as the Court rightly observed, has
tended to place an ever increasing burden on grantors, while strongly
upholding the presumptive innocence of grantees, and this trend has
continued during the century or more that has passed since the time of this
case as well. Some surveyors, naturally being acutely aware of the frequent
occurrence of boundary issues, may be inclined to hold every grantee who
fails to obtain a survey prior to acquiring land guilty of negligence, but that
perspective, being skewed by the surveyor's specialized knowledge, is not in
accord with the law, as this case demonstrates, and in fact no such arbitrary
and absolute legal requirement exists anywhere. While it certainly is quite
prudent and wise to obtain a survey before investing in any land, doing so is
always legally left up to the discretion of the individual, to be decided in
accord with the grantee's personal judgment of the circumstances
surrounding any particular land acquisition. Courts only very rarely chastise
grantees for failing to order a survey of the land that they sought or intended
to acquire, and they typically do so only when the need for a survey is
especially obvious, such as those instances where no visible or perceptible
boundaries exist at all. Most importantly to surveyors, as professionals
dealing with land rights, the fact that a grantee chooses not to order a survey,
or not to demand that the grantor obtain and provide a survey, does not
equate to a lack or an absence of good faith on the part of the grantee, and
every purchaser without notice of any potential boundary issues is presumed
to be an innocent party, whose land rights are entitled to protection, until the
contrary is shown. So while it may be fairly stated that Roberts bargained for
a quarter section, and he got a quarter section, properly and legally
described, with definite and ascertainable boundaries, that does not mean
that he was legally bound to accept any boundaries that were portrayed to
him in error, or that one in such a position as Roberts found himself has no
legal recourse, and must simply resign himself to accepting the
consequences of his failure to verify the boundaries of the land being
conveyed to him. Since Roberts had not suffered any permanent loss
however, due to the willingness of Warren to accept the reconveyance of the
unwanted land from Roberts, such as he would have sustained if he had been
unable to reconvey the quarter to Warren for any reason, Roberts could not
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demand compensation for any further damages, beyond a plain refund of the
price that he had paid. Nonetheless, the Court made it clear on this occasion
that any kind of misrepresentations concerning boundaries, made by
professionals with knowledge of land rights, would be dealt with sternly, and
would neither be taken lightly nor be tolerated.
A highly comparable situation soon came to the Court, in the case of
Rasmussen v Reedy in 1900, which the Court utilized to strongly reinforce
the position that it had taken on the obligations of a grantor and his agents to
a grantee in the Roberts case. Rasmussen owned land in Union County,
while Reedy owned land in Yankton County, and the parties agreed to
exchange their properties. Rasmussen visited the Reedy property to verify
that it would meet his need for farmland, and it was shown to him by the
father of Reedy, acting on behalf of his son who owned the land. Reedy's
father pointed out the toe of a bluff as one of the boundaries of the Reedy
property, thereby indicating that it was all good farmland, and Rasmussen
conveyed his property to Reedy on that basis, but Rasmussen subsequently
discovered that much of the Reedy property was actually on the bluff and
was worthless as cropland, so he insisted that the deal was off, but Reedy
refused to convey Rasmussen's land back to him. The Court upheld a lower
court decision in favor of Rasmussen, allowing him to rescind his
conveyance to Reedy and compelling Reedy to reconvey the Rasmussen
property. In so deciding, the Court again emphasized, consistent with it's
ruling in the Roberts case, that an innocent grantee is legally entitled to fully
rely upon any specific boundary locations pointed out to him by either his
grantor or anyone acting as an agent on behalf of the grantor. The Court
further explained that every misrepresentation regarding boundaries made by
a grantor must be treated as the equivalent of fraud, whether that
misrepresentation was intentional or not, because anything that induces the
grantee to buy the land amounts to constructive fraud on the part of the party
providing the incorrect information. In addition, the Court expressly rejected
the suggestion by Reedy that Rasmussen was obligated to obtain a survey of
the Reedy property, if he cared about the location of the boundaries of
Reedy's land, stating that the information that had been provided to
Rasmussen by Reedy's father had removed any obligation that Rasmussen
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might otherwise have had to take any such further action to ascertain the
location of the boundaries in question. Had Reedy and his father told
Rasmussen nothing about the boundaries of their land, in the view of the
Court, Rasmussen would still have had no absolute obligation to obtain a
survey of the property that he intended to acquire, but if Rasmussen had then
proceeded to convey his land to Reedy, as he had in fact done, based only on
Rasmussen's own assumptions about the relevant boundaries, without any
misleading information from Reedy or his father, Rasmussen would have
been unable to rescind the conveyance that he had made.
Another particularly interesting and unusual case from this time
period, Wampol v Kountz, which took place in 1901, also provides great
insight into the Court's emphasis on the great importance of equitable factors
to all land transactions, and is therefore worthy of note at this point, as a
classic example of a conflict centered upon the relative rights of a grantor
and the successor of a grantee. A typical quarter section was patented to
Kountz in 1872, but in 1873 her father forged her name on a quitclaim deed,
conveying her land to himself, and shortly thereafter he quitclaimed the
quarter to Marsh, who took up residence on the land. Kountz was an
absentee owner who lived elsewhere, and her father was apparently the only
actual occupant of the land, so she evidently remained unaware of what her
father had done for several years. In 1885 Kountz finally learned, by some
unknown means, what her father had done, but she took no action
whatsoever at this time. In 1889 Marsh quitclaimed the quarter to Wampol,
and in 1892 the husband of Kountz obtained a quitclaim deed from the father
of Kountz, purporting to convey the quarter back to he and his wife. In 1898
Wampol somehow learned or was informed about what had happened, and
he filed an action against Kountz and her husband, seeking to have their
claim that they still owned the quarter declared to be invalid. Kountz argued
that she had always owned the quarter, because the deed recorded by her
father in 1873 had been a forgery and was therefore patently invalid and
worthless, so both of the subsequent conveyances of the quarter, to Marsh
and to Wampol, were necessarily invalid and Wampol had acquired nothing.
The Court upheld a lower court ruling that Wampol was the sole owner of
the quarter, and neither Kountz nor her husband held any interest in it,
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despite the forgery and despite the chain of quitclaim deeds upon which
Wampol's case rested. In so holding, since Wampol had made no adverse
possession claim, the Court concluded that the equitable factors of estoppel
and laches formed a legitimate basis for the outcome in Wampol's favor. In
the view of this scenario taken by the Court, the most critical event of all
was the 1885 discovery by Kountz of the crime of her father, and the Court
elected to take this opportunity to demonstrate that it will not tolerate any
form of complicity with such a criminal act. Kountz had in effect become an
accomplice to her father's theft of her own land, in the eyes of the Court, by
virtue of her silence after her discovery of what he had done, and the Court
therefore declared her guilty of laches, which signifies an unjustifiable delay
in acting, and which results in a termination of the rights of the guilty party
through estoppel. Her 13 ensuing years of silence, the Court determined, had
effectively foreclosed any opportunity she might have had to recover
ownership of her quarter section, if she had acted promptly upon discovering
what had occurred. Since it involves an actual crime, this case definitely
represents an extreme situation, rather than a typical land rights dispute, but
it does serve to clearly illustrate that the Court always expects those dealing
with land rights, as either grantors or grantees, to act in good faith, and to act
promptly, whenever land rights issues appear, or risk losing their rights. We
will take further note of the judicial application of the powerful equitable
concepts of laches and estoppel to land rights issues as we proceed through
the decades.
YANKTON COUNTY v KLEMISCH (1898)
Returning to the subject of easements, we will next review a case that
provides insight into the historic process through which county roads outside
the section line right-of-way were created, and beyond that, also displays the
manner in which the Court protects such valuable public assets. Most
surveyors are already cognizant of the familiar judicial maxim which makes
the ability of a surveyor to properly or effectively utilize any given legal
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description the ultimate measure of the usefulness, and thereby the validity
for location purposes, of the given description. Here we will look on as the
Court applies that standard to a highly indefinite description, in combination
with two other crucial factors that must also be considered in determining
the overall validity of the right-of-way that was established pursuant to the
objective for which the description in contention was created. The first of
those two additional factors requiring consideration, beyond the technical
content of any legal description, is the purpose for which it was created.
While the Court has always required a high degree of correctness,
completeness and clarity in descriptions created to facilitate fee conveyances
of land, as we have already observed, the Court has also always recognized
that there is no need or reason to demand that the same high level of
accuracy must appear in descriptions created for all other purposes, such as a
description intended only to outline a route for purposes of construction of a
roadway by a county through private land. Description standards are much
higher today than they were over 100 years ago of course, and roads are no
longer created through the petition process that is on exhibit here, yet all of
the description principles presented and exercised by the Court in this case
remain fully valid. The second major factor influencing the Court's decision
to support the very minimally acceptable description at issue in this case, is
the plain fact that the intended roadway was actually built, which introduces
the important concept of subsequent acts of the parties to a conveyance, as
potentially controlling elements of that transaction. In this instance, as
always, its worth noting that the Court prefers to approach the resolution of
land rights controversies from the perspective of common sense, which
rarely conflicts with the letter of the law, and the Court's attitude toward the
description being challenged in this case follows that typical pattern of
analysis. In the view of the Court, the allegedly deficient description was put
into actual use for it's intended purpose, and at no point when doing so was
the description found to be so worthless or useless as to prevent the objective
from being accomplished, so the fact that a road that accords in terms of
location with the disputed description was subsequently built and put into
public use, without objection, proves to be the ultimate verification, in the
eyes of the Court, of the validity of the questionable description itself.
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1879 - Klemisch was the owner of a tract of unspecified size,
presumably either a quarter section or a quarter quarter, in an
unspecified rural area in Yankton County. The county road system
was in it's infancy at this time, and public roads were being created as
needed, typically at the request of groups of land owners. About 50
land owners filed a petition with the county, requesting that a public
road about 15 miles in length be created, along a proposed route,
which for the most part did not follow section lines, and instead ran
diagonally through the lands of an unspecified number of parties,
apparently along a path dictated by topography, or quite possibly just
following a sequence of existing trails. This proposed route was
approved and surveyed by the county, and a roadway was created and
put into public use, with a right-of-way one chain in width centered
upon the roadbed, to the apparent satisfaction of all parties, including
Klemisch, whose property was traversed by a portion of the road.
Whether Klemisch was among the parties who had requested the road
is unknown, but he was certainly aware of the circumstances
surrounding it's creation, and he made no objection to it, in fact he
was among those who participated in the actual construction of the
road.
1880 to 1887 - This road was used by the public without incident and
it became a regularly used and well travelled portion of the county
road system.
1888 to 1895 - During this period Klemisch occasionally plowed up
portions of the road located on his property, making travel across his
land difficult or impossible, and at other times he apparently placed or
erected obstructions of unspecified other kinds within the right-ofway, that also served as impediments to travel, thereby creating a
frequent nuisance to the travelling public. Whether these actions on
his part represented a deliberate effort to physically block the route of
travel and force it to be relocated off his property, or merely
represented carelessness and disregard for the road on his part, is
unknown, and to what extent the route of travel varied, or was
partially relocated as result of his actions, is also unknown, but public
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travel over the Klemisch property, by one path or another, evidently
never ceased for any meaningful length of time. The county
eventually grew tired of repeatedly dealing with the public nuisance
that Klemisch was continually creating however, and therefore
decided to file an action to compel him to respect the right of the
public to use the original right-of-way location, by allowing it to
remain open and unimpeded at all times.
Yankton County argued that the right-of-way in question had been
legitimately created in all respects, having been properly requested,
approved, surveyed, built and utilized by the public for many years, without
any timely or specific objections arising, regarding either it's existence or it's
location, so a valid public right-of-way had been definitely and permanently
established in the location originally used by the public, which no land
owner had any right to obstruct in any manner. Klemisch argued that the
intended road location had not been adequately defined in the original
petition, so it was impossible for the county or anyone else to prove that the
subsequently surveyed location actually represented the originally intended
location, therefore no properly defined road location had ever been legally
established, and no definite right-of-way location existed. He further argued
that he had never forsaken or relinquished the right to reclaim and utilize all
of his land as he pleased at any time, so he was not legally bound to honor
the existence of any public right-of-way on his land, nor could he be forced
to accept the surveyed location of the road through his property as legally
binding upon him. The trial court held that the road and the accompanying
public right-of-way had been properly created, and the roadway location that
had been surveyed and used by the public was binding upon all of the
owners of the various lands lying beneath it, so Klemisch was legally bound
to honor the existence of the public right-of-way, in the location where the
road had originally been built.
Descriptions can serve many purposes of course, some of which
require great precision, while others do not. The most basic objective of any
legal description is to define a unique location on the surface of the earth, in
a manner that is both legally supportable and readily understandable to all
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those who will need to read the description and use it in the future. Not
every description however, requires the precise delineation of a rigid and
inflexible location, all that is required in that regard is an appropriate level of
certainty, tailored to suit the purpose for which the description is being
created. For example, a description can legitimately call out a natural
monument, such as river, as a boundary, even though the location of the
river is fully understood to be constantly variable and perpetually subject to
change, because calling out the river as a boundary best accomplishes the
true intent of the parties, by providing the requisite level of certainty, as to
the boundary location at any given time in the future, leaving the boundary
inherently flexible in terms of location, yet very clearly defined. The
description created by the original road petitioners in this case was in fact
highly indefinite, and entirely lacking in precision, just as Klemisch
maintained, yet it was very well suited to the purpose that it was intended to
accomplish, which was to point out the best general route for the desired
roadway. It was understood by the authors of the original description that the
execution of a survey was part of the typical official road establishment
proceedings, so they realized that there was no need or reason for them to
attempt to pin down their intended route in any precise or absolute terms,
because that task was best left to the road surveyor. As the Court very wisely
observed, one of the most essential principles of description analysis is "That
is certain which can be made certain", meaning that every description must
be construed in the light of the circumstances surrounding it's creation, and
with due consideration to the subsequent acts of the parties, both which can
provide highly valuable evidence of their true original intentions, and make
the meaning that the original words held for the parties certain for all to see.
In this case, both the subsequent survey and the construction of a roadway,
following the course that had been outlined in the petition description,
supplied the essential element of certainty, effectively ratifying the validity
of the original description, to the evident satisfaction of all of the road users
and land owners alike, with the exception of Klemisch. There was no
evidence suggesting that the roadway location that was actually built and
used varied in any material way from the surveyed route, so Klemisch could
not successfully maintain that the right-of-way in actual use was not in
agreement with the right-of way location of record, as defined by the survey,
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yet the Court focused primarily upon the actual construction and use of the
roadway at issue, as supplying the strongest evidence of it's intended and
legally controlling location. Citing comparable cases that had been resolved
by applying similar description principles in Indiana and New Jersey, the
Court took the position that the description in controversy was fully
sufficient for it's intended purpose, despite it's employment of very loose and
imprecise language:
“The petition ... stated ... commencing at the township corner to
townships 93 and 94 N., of range 55 and 56 W.; thence
northerly on or near the township line to the neighborhood of
the quarter section corner between sections 13 and 18, township
94 N., of ranges 55 and 56; thence in a northwesterly direction
to the bridge now built across Beaver Creek ... thence in a
northwesterly direction to what is known as the Ellerman
Bridge ... thence northeasterly to the north and south section
line running through the corner to sections 20, 21, 28 and 29,
township 96 N., range 56 W.; thence northerly on or near the
north boundary of Yankton County ... It is insisted that this ...
renders the petition insufficient ... a description of a proposed
highway which is sufficiently definite to enable a surveyor to
locate the highway is all that the law requires ... While,
technically speaking, the description ... may be in some
particulars objectionable ... there is no merit in the contention
that the proceedings were null and void."
There was no evidence that Klemisch or any other land owners had
ever been financially compensated for the use of a portion of their land as a
public roadway, which of course had the effect of burdening the land of each
party whose property was crossed by the road with an easement for that
purpose. This was not a factor in the outcome however, since the existence
of the public right-of-way operated as a distinct benefit to all of the parties
whose land it served, as well as a burden, and it had come into existence
through a process that was motivated by an invitation from the land owners
themselves, or their predecessors, who had thereby implicitly approved and
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accepted it's creation, without any stipulation of any further compensation
being due to them. The Court poignantly emphasized the fact that the
acquiescence of all the parties having any direct interest in the road, over a
period of many years, was an important factor in this scenario, substantiating
and validating both the existence of the public right-of-way and it's location,
through their mutually beneficial use of it, and their mutual tolerance of it's
presence within their private boundaries. If Klemisch ever had any
legitimate objection to either the existence or the location of the public
roadway, he had missed his chance to protest it, any opportunity he might
have had to eradicate it, or to insist that it be relocated off his land, had been
foreclosed by his own acknowledgement of it's existence, and his use of it
for his own benefit, so the Court fully upheld the lower court decision
against him. Since there was evidently no perceptible difference between the
surveyed location of the road and the location in which it had been built, and
the only variation in it's location over time, if any, had resulted from the acts
of Klemisch himself, he had no valid basis upon which to assert that the
right-of-way was not in the originally intended location, as defined in effect
by the road itself. It was very clear to the Court that Klemisch was simply
attempting to utilize the presence of some degree of ambiguity in the
original petition description as a device, by which to eliminate the public
easement crossing his land, which he had once welcomed and accepted
along with his neighbors, but which had evidently come to be a source of
aggravation to him, presumably because traffic on the road had increased to
a level which he had not anticipated. Once exposed in this light, his effort
was doomed, since his personal reversal of his own original acceptance of
the road on his land, deprived his argument of the crucial element of good
faith, leading the Court to dispose of his attack on the validity of the petition
description in the same way it deals with all those who seek to prevail by
falsely elevating the importance of minor technicalities of any kind. The
right-of-way location in question had been initially created by means of a
legitimately executed survey, and had been legally cemented in place by the
principle of establishment through usage, which represents the embodiment
of the concept that the strongest evidence of the controlling intentions of the
parties is typically found in the location that was actually put into use on the
ground, leaving no question, in the view of the Court, that the existing
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roadway was in the location that had been originally described and originally
intended.
Also in 1898, the Court extended it's protection of the section line
right-of-way to school sections, with it's decision in the case of Riverside
Township v Newton, marking the first occasion upon which the Court had to
contend with an allegation that attempted to fundamentally limit the section
line right-of-way. Newton owned land in Sections 9 & 16 in Riverside
Township in Clay County, and he asserted that the township had no right or
authority to build or open a public road running through his land, along the
line common to those sections, since Section 16 was a school section. The
township commenced an action against Newton, to compel him to cease his
resistance to the proposed roadway, but the trial court held that Newton was
right, because the section line right-of-way emanates from RS 2477,
previously discussed herein, which expressly stipulates that it does not apply
to any land reserved for public purposes, and school sections constitute such
land, so no section line right-of-way had ever existed in Section 16. The
Court disagreed however, declaring that school sections were never intended
to represent public land in the fullest sense, because they were devoted only
to use for the benefit of the public, and they had not been reserved for
perpetual use by the public alone. Pointing out that the school sections had
always been intended to be conveyed into private ownership, for the purpose
of funding the public school system, the Court concluded that the land in
those sections was in no sense reserved, and therefore reversed the decision
of the lower court, enabling the township to utilize the full one chain section
line right-of-way, centered upon the section line at issue, without
compensating Newton for doing so. Another controversy, quite comparable
to the Klemisch case, was also developing at this time, although it was
destined not to be adjudicated until 1925, in the case of Duxbury v McCook
County. In 1894 Duxbury owned a quarter section in Pearl Township, and
for unknown reasons, along with a group of adjoining land owners, he
requested that an existing section line road be relocated to an area outside
the section line right-of-way. The township approved this request, and
relocated the road, and it was used by the public for the next 30 years,
crossing Duxbury's land in the very location which Duxbury himself had
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proposed and agreed to in 1894. Duxbury maintained that he had never fully
agreed to the road location on a permanent basis, and that he had reserved
the right to insist that it be relocated or adjusted again in the future, in accord
with his own needs or desires in making use of his land. The Court upheld a
lower court decision against Duxbury, verifying that regardless of any
details pertaining to any surveys of the road in question, or to the manner in
which the relocated portion of the road had been described, the location that
had been used for well over 20 years by the public conclusively represented
a permanent public right-of-way, that was legally binding upon all parties,
including Duxbury. Interestingly, the Court chose not to base this result
upon prescription however, basing it instead upon estoppel, holding that
Duxbury had implicitly consented to the location that had long been used by
the public, making his belief that he still had the right to demand that the
road be moved back to the section line or otherwise shifted, simply
irrelevant, and thereby silencing his protest, requiring him to honor the
existing road location as a valid public right-of-way.
WHITTAKER v CITY OF DEADWOOD (1900)
While the topic of dedication has already been briefly mentioned, in
the context of the section line right-of-way, which represented one extremely
large dedication, made by the federal government by statutory means in
1866, this case marks our first detailed examination of dedication in a more
typical context, pertaining to roadways that are unrelated to the section line
right-of-way. Like the 1891 Wells case however, this controversy involves
RS 2477, because the conflict that plays out here is centered upon the
creation of the earliest streets in Deadwood, which is a very historic
location, that came into existence under a very unusual set of circumstances,
so although this case involves what may appear to be typical city streets
today, it actually represents a rather unique application of the principles that
support the concept of dedication. A truly typical dedication, in the modern
sense, can be well understood by reviewing any subdivision plat that was
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prepared for the purpose of creating new lots intended for private use, along
with new streets intended for public use, connecting to existing public streets
in any city or town. Such plats are prepared, checked and approved today,
with the objective of achieving compliance with detailed modern standards
applicable to platting and dedication, and when properly prepared and
finalized they provide great clarity, insuring that the public status of all of
the areas intended to be devoted in perpetuity to public use are well
documented. Such dedications, when made through the use of a properly
prepared and approved plat, represent statutory dedications, that are fully in
accord with all of the parameters for dedication that have been codified into
law, but even today not all dedications are statutory in nature, and at the time
of the case we are about to review the standards pertaining to dedication
were still poorly developed and relatively primitive, so the need for a legal
means of recognition of other forms of dedication existed. The type of
dedication on exhibit in this case has it's origin in the principles of equity
that comprise the common law, and it was therefore originally known as
common law dedication, one good example of which is a dedication that
resulted from a plat which was improperly executed in some respect.
Because a dedication of this variety is founded upon an intention that clearly
existed, but was improperly carried out, thereby running afoul of the law and
failing to qualify as a statutory dedication, the underlying concept has come
to be popularly known as implied dedication, or more formally, dedication
by implication. Here we will observe a scenario that leads the Court to
conclude that a legally binding dedication of city streets has taken place,
although it was never specified or explicitly described as a dedication in any
existing documents or records, and we learn that the presence of only a few
very basic equitable ingredients can result in a complete and entirely valid
dedication, making the importance of recognizing evidence that supports
implied dedication quite apparent.
Prior to 1876 - At an unspecified time, settlers began to arrive and
populate the locality that would later become Deadwood. The land
that would eventually comprise the city was situated within a Sioux
Reservation at this time, so the settlers were actually illegally
encroaching on the land, nevertheless they continued to pour in and
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settle in close proximity to each other, forming the nucleus of a city.
At an unspecified date during this period, the first map or plat of the
city was produced by an unknown party or parties, showing that some
lots, blocks and streets were already in unofficial use as such.
1876 - Early, who was a miner, filed a mineral location claim that
embraced an unspecified portion of the city. Although Early, like all
of the other settlers, was also an encroacher, and his claim was illegal
to that extent, he apparently did make use of some portion of the land
within his claim, and he acknowledged and treated the existence of the
claims of his fellow settlers, and the existence of the city itself, as
valid. Early then conveyed some, if not all, of the platted lots lying
within his mineral claim to various settlers.
1877 - The portion of the Sioux Reservation occupied by Deadwood
was officially relinquished by the native people, and became part of
the public domain, open to legal settlement. The claims of all the
various settlers, which had formerly been technically illegal, became
valid land claims at this time. Shortly thereafter, Whittaker acquired
some of the lots that had been previously conveyed to others by Early,
and began erecting buildings on some of the lots, some of which may
have encroached upon some of the adjoining streets, but these
buildings were apparently insubstantial and they later burned down.
1880 - Early obtained a patent, granting him ownership of the land
lying within the boundaries of his mineral claim, which covered a
portion of Deadwood that had previously been platted, including
portions of Deadwood Street, Sherman Street and Seiver Street, along
with some lots fronting upon those streets. Early recognized the land
rights of all the settlers, such as Whittaker, who were occupying those
portions of his land that he had already conveyed, so the issuance of
this patent served to legitimize their acquisitions and ownership of
their respective portions of his mineral location.
1881 - Deadwood was officially incorporated as a city, and the
existing lots, blocks and streets were officially recognized as
legitimate.
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1884 - Whittaker erected a building that apparently encroached upon
Seiver Street by about 5 feet. He may not have known or cared about
this encroachment, since Deadwood evidently raised no objection to
the location of the building at this time, and how or when the
existence of the encroachment was actually determined is unknown.
1893 - By this time, Whittaker owned an unspecified number of
buildings which were situated on his lots fronting upon Deadwood
Street, Sherman Street and Seiver Street. Deadwood announced a plan
to improve some of the city streets, including those bordering the lots
owned by Whittaker. Whittaker however, was apparently not
convinced that these streets had any valid legal existence as such, so
he decided to challenge the right of Deadwood to make the planned
improvements. He wrote a letter to the mayor, indicating that he
would formally protest and oppose any attempt to improve these
streets, stating that the city's plan to change the grade of the streets in
certain areas would have an adverse impact on the use of his buildings
and his lots.
1894 - Deadwood elected to proceed with the planned improvements,
over Whittaker's objections, demanding that his encroaching building
be removed from Seiver Street. Whittaker refused to move the
building however, and he filed an action against Deadwood, seeking
to prevent the city from completing the street improvement project.
Deadwood responded by filing a countering action against Whittaker,
to compel him to relinquish his claim relating to the control of the use
of the streets in question, and insisting that he acknowledge the right
of the city to control the use of all of those platted streets.
Whittaker argued that none of the streets in question had ever been
formally dedicated to public use, and they could not have been formally
dedicated by means of the original plat of Deadwood, because the land was
being illegally occupied at the time the original plat was created, so it could
have no legal effect. He further argued that nothing that had been done in the
city prior to 1877 could be considered an act of dedication to the public,
because the land itself was not part of the public domain at that time, so all
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of the actions taken by the settlers prior to 1877 were illegal, and could
therefore have no legal effect. Since he had acquired his land in 1877, he
asserted, neither he nor anyone else had done anything that could constitute
a valid dedication of any of the streets at issue to the city, so he was still the
owner of the land underneath those streets, and he was therefore under no
obligation to move his building. Deadwood argued that although the original
plat was not legal or binding at the time it was created, it had been respected
and relied upon as if it were legal by all of the people in the area, including
all those, such as Early and Whittaker, who had gone on to legally acquire
land in the city at a later time. Furthermore, the city maintained, the actions
of both the land owners and the public in general, both before and after
1877, clearly indicated the intention of all parties to allow public use of all
of the streets in dispute, so all of the requisite elements of a complete legal
dedication, in accord with the original plat, were in place, and Deadwood
was therefore authorized to exercise full control over those streets, including
ordering the removal of any encroachments, such as Whittaker's building.
The trial court found that a valid dedication of the streets in controversy had
taken place, by means of implication, so Whittaker had no right to exert any
control over any of the platted streets, or encroach upon them, and they were
all under the exclusive control of Deadwood.
These two legal actions were addressed by the Court as separate cases,
but they were effectively merged and decided together on the same day,
since the dedication status of the 3 streets in dispute was the sole issue to be
decided, and the resolution of that question would fully dispose of both
actions, once conclusively answered. The Court began by agreeing with the
litigants that all of the occupation and use of the land that would later
become Deadwood, by the original settlers, which took place on the Sioux
Reservation prior to the formal termination of the ownership of that land by
the native people in 1877, was definitely illegal, and since the plat in
question originated from that period, it could not be upheld as a valid source
of a formal dedication. Since the creation of the original plat was dubious
and shrouded in mystery, the Court viewed it as fundamentally illegitimate,
and treated it as merely equivalent to a street map, with no binding legal
effect. Yet this conclusion concerning the plat did not completely deprive it
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of all value, since it still represented a reasonably accurate representation of
the intentions of the parties during the period of initial settlement, which had
eventually been legitimized by subsequent events. Most importantly, the
Court observed that although the original settlers of the area, in occupying
portions of the Sioux Reservation, could acquire no private rights as
individuals, they could establish valid patterns of land use as a public body,
which could subsequently become legally binding. Under RS 2477,
previously discussed in reviewing the Wells case of 1891 herein, the Court
held that the use of the original roads, that would later become the city
streets in question, by the public, even prior to 1877, did legally operate to
create legitimate public roadways, which formed a subsisting encumbrance
upon the land, predating any of the subsequent land acquisitions made by
any of the settlers, such as Whittaker, or any miners, such as Early. So by the
time the land at issue became part of the public domain in 1877, it was
already impressed with a public right-of-way, protecting each and every
roadway that had come into existence through use by the settlers, and every
individual who subsequently acquired any of the land traversed by the
existing roads, took the land subject to any such existing public right-of-way
that crossed anywhere through the land acquired. Both Early and Whittaker
therefore, along with all of their fellow immigrants to the area had, by taking
ownership of their lands under the observable existing conditions, had
implicitly accepted the existence of the public roads, in all of the locations
that were being utilized by the public for that purpose at that time, which
evidently corresponded well to the road locations indicated on the original
plat. Quoting in part from the seminal Mason case of 1892, previously cited
herein as having established the precedent for dedication beyond statutory
parameters, the Court defined the concept of implied common law
dedication, and the circumstances that can lead to it, as follows:
“One of the methods of acquiring the right to the use of land for
a street is that of the implied dedication of the same by the
owner of the fee. In an implied common law dedication, the use
of such land by the public as a street, with the knowledge of,
and without objection by, the owner of the fee, for a number of
years, is evidence of such dedication ... his (Whittaker's)
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conduct was inconsistent with his present contention. It is not
consistent with any notion of fair dealing for him to now assert
ownership in this ground after acquiescing in its use by the
public for so many years ... Where one (Early) consented to a
platting and laying out of lots and streets ... and he subsequently
conveyed such claim, describing it according to the plat, there
was a dedication ... under RS 2477 ... they (the city and the
public) acquired a valid title by such dedication, of which no
subsequent acts of the patentee or his grantees could deprive
them."
The position taken by the Court in deciding these two corresponding
cases clearly illustrates the fact that even unofficial or unrecorded plats or
maps can hold significant value, whenever it can be shown that such a
document, however crude, simplistic or ambiguous, has been relied upon in
the creation or transfer of land rights. In this instance, the Court
acknowledged the original plat as being an unofficial and even illegal
document, yet recognized that it had obviously served an important purpose
to the people of the community, since many conveyances had been made
with reference to it, including those made by Early, demonstrating that he
had personally accepted it, and made use of it as a grantor, as if it were
entirely valid. The fact that the pattern of roads actually used by the public
matched the platted road locations very well, indicated that the public had
relied upon the plat, and the public use of the streets in controversy here, the
Court noted, also signified the acceptance of the RS 2477 dedication, in
those locations defined on the plat, by the public, so the Court upheld the
lower court rulings in both cases, in favor of Deadwood and against
Whittaker. The letter written by Whittaker to the mayor of Deadwood in
1893, protesting the city's claim that the 3 streets in controversy were public,
and expressing his own position to the contrary, actually worked strongly
against him, in the eyes of the Court, because it revealed that he had long
recognized the streets as being public himself, since he had allowed public
use and repair of those streets to go on routinely for nearly 20 years by that
time. Whittaker's behavior, in attempting to challenge the rights of the city
and the public to improve the streets, when viewed in the light of his failure
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to ever raise such an issue previously, made it clear that he was attempting to
take advantage of the unclear dedication status of the streets merely for his
own personal gain, and hoping to successfully demand payment from the
city for agreement on his part to allow the improvements to go forward. The
Court was determined to silence Whittaker's claim, and appropriately turned
to the concept of dedication by implication in order to do so, since he had
been a grantee with definite physical notice of the existence of the streets,
and that tool of equity is founded upon the basic premise of justice that no
grantee with knowledge of existing conditions can simply choose to close
his eyes to them. In addition, as quoted above, the Court deemed Whittaker's
acquiescence in the long standing public use of the relevant streets to be an
important factor supporting the concept of implied dedication, and as we
will see in later cases, the Court would go on to uphold that concept as a
product of estoppel based on such acquiescence, in it's drive to support all
beneficial public rights. Although the Court clearly defined the title that had
been acquired in the streets by the city as an easement, leaving Whittaker as
the fee owner of the land beneath them, the outcome of these twin cases
represents an outstanding example of the arrival of the modern judicial trend
toward an increasing emphasis on the protection and enforcement of
valuable public land rights, which we shall see further evidence of, as we
proceed through our review of the most notable South Dakota cases of the
twentieth century.
A few additional cases, signaling the rising judicial recognition of the
value of public rights to our society that was underway at this time, as well
as the rising significance of easement and right-of-way law, are worthy of
note at this point, beginning with the 1903 case of Kirby v Citizens
Telephone Company of Sioux Falls. Kirby was the owner of several typical
platted lots in Sioux Falls, and he objected when telephone poles were
installed in the public right-of-way, claiming that the right-of-way was
intended only for travel, so the telephone company was legally required to
pay him for the use of his portion of the right-of-way. The Court upheld a
lower court decision against Kirby, formally adopting the position that any
dedicated right-of-way is subject to use for communication purposes as well
as transportation purposes, which was a position that had already been taken
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by Minnesota and Montana, but rejected by North Dakota. In 1905, in
Larson v Chicago, Minneapolis & St. Paul Railway, the Court was
confronted with another precedent setting conflict, between a town and a
railroad company. The company built a roadway that crossed it's own tracks
in the town of Summit, evidently to expedite traffic coming and going from
the company's depot and railyard, where both passengers and cargo often
disembarked. This roadway came to be used by the general public, both to
access the railway facilities and for other travel, since it was the only
roadway crossing over the tracks within the boundaries of the townsite, but
the company decided to close the crossing. Larson, acting on behalf of the
townsfolk, filed an action against the company, seeking to keep the crossing
open, maintaining that the roadway had been dedicated under the common
law, so the company now had no right to close it. The Court upheld a lower
court ruling in Larson's favor, holding that the company was estopped from
claiming that it had intended the crossing to be only temporary or that the
company had reserved the right to close it, with the memorable words
"estoppel gives triumph to right and justice, where nothing else could save
them". This case thus marks the first application of estoppel to dedication by
the Court, and the Court would frequently reference the Larson case when
invoking estoppel in support of implied dedication in the future. In
Lawrence v Ewert in 1908, the Court issued what may be it's strongest and
most absolute decision ever regarding the section line right-of-way. Sully
County had ordered Ewert and several other land owners to remove their
fences from the portions of the section line right-of-way that crossed their
properties, but they refused, and they repeatedly rebuilt fences within the
public right-of-way that had been taken down by the county, making it
unavailable for unrestricted travel. Lawrence filed an action against the
Ewert group, on behalf of the county, seeking to have the land owners
judicially compelled to keep the section line right-of-way clear, and the
Court agreed that the right of any county to mandate that the section line
right-of-way be kept open to public travel at all times was absolute, placing
the burden of proof upon any such resistant land owner to show that such a
county order was unreasonable, before obstructing the public right-of-way in
any manner. Describing the creation of the section line right-of-way as "one
of the most important and beneficial acts that was ever enacted", the Court
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made it quite clear that the rights of the public to every useful portion of the
section line right-of-way would be most ardently defended.
MCGRAY v MONARCH ELEVATOR (1902)
As was noted in discussing the Webster case of 1896, the issue of
PLSS boundary control had become a matter of some contention among the
Justices of the Court, despite the fact that the Court had initially taken a very
wise and decisive course, in full support of the validity of the work of the
original GLO surveyors, in ruling upon the PLSS boundary cases decided
prior to that time. The one particular Justice who had dissented from the
result of the Webster case was one of the most senior and most highly
respected Justices on the Court, so his divergence from the strong position
on original boundary evidence that had long been adhered to by the Court
undoubtedly stimulated some discussion and debate among his learned
colleagues. Its very likely that this disparity of opinion over the relative
value of different forms of boundary evidence originated from external
influences however, since the members of the Court do not deviate from
established principles, unless some compelling reason to do so is placed
before them. The Justice who dissented in the Webster case, and wrote the
opinion of the Court in the Dowdle case shortly thereafter, emphasizing the
significance of plats and field notes as PLSS evidence, presumably took that
position after broadly educating himself upon PLSS principles, with the
intention of providing an enlightened counterpoint to the Court's previously
universal application of the principle of monument control. Measurement
science was burgeoning at this time, amidst the many outstanding scientific
advances that were being made in numerous fields of endeavor, inspiring
great confidence throughout society in the application of scientific solutions
to problems of all kinds, so it's not surprising that measurement evidence
rose to challenge the venerable principle of monument control at this time.
In the 5 years that had passed since the Dowdle decision had been confirmed
by the Court in 1897 however, that same particular Justice had apparently
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further educated himself on the proper application of boundary control
principles to land survey work, and by the time the case that we are about to
review came to the attention of the Court, he was once again on board with
the mainstream view favoring monument control over evidence of record. In
fact, having at last come to terms with the legitimacy of monument control
as a fundamental principle of both law and equity, forming the bedrock of
boundary stability and land rights in general, he proceeded to take a leading
role in addressing land rights issues until his departure from the Court,
composing the decisions in the next two PLSS boundary cases noted below,
as well as this one, those being the Tyler and Unzelmann cases, both in
1905. But as we will subsequently note, original boundary evidence in
documentary form, typically GLO plats and field notes, would again rise to
challenge physical and testimonial evidence, as such truly direct evidence of
the original work of the GLO surveyors on the ground dwindled and
diminished with the passage of time, compelling the Court to turn to
alternative means, to preserve physically established boundaries.
1884 - Tyler was the owner of the northwest quarter of Section 10,
and Haggert was the owner of the southwest quarter of Section 3, in a
certain township in Roberts County, which had been platted by the
GLO in 1874, and a section line road ran between these two sections.
How long Tyler and Haggert had owned these quarters is unknown,
presumably they were both original entrymen, and the validity of their
titles to their respective quarters was never questioned. The origin of
the road is also unknown, but it had apparently been recognized and
treated as marking the section line by everyone in the vicinity since
the time of it's construction. Tyler decided to create a townsite of
unspecified size in the northwest corner of his quarter, so he had that
area surveyed and platted as the town of White Rock. Whether or not
any lots in this townsite were ever conveyed or occupied is unknown,
but in the process of surveying and platting it, the existing road was
adopted as marking the section line representing the north boundary of
the townsite.
1896 - A land agent, representing Monarch Elevator arrived in the
area, looking for a potential site for a grain elevator that the company
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intended to build and operate. The agent met Tyler, and mentioned to
him that he was interested in acquiring some of the land lying along
the north side of the road, directly across the road from the townsite,
and Tyler informed him that the land he was asking about was owned
by Haggert. The agent then located Haggert, and negotiated the
purchase of a 100 foot by 150 foot site in the southwest corner of
Section 3 from him, and Haggert deeded the site, lying on the north
side of the road, to Monarch, presumably describing it as being part of
the southwest quarter of Section 3. The company then built a grain
elevator and some related buildings on the site, and put the new
facility into operation as a part of their business.
1899 - A resurvey of the area was performed, which indicated that the
north line of Section 10 was actually 135 feet north of the centerline
of the public road that had previously been accepted as representing
the section line. Who ordered this resurvey, and for what purpose it
was conducted, are unknown, but when Tyler was informed of the
location of the north boundary of his quarter, as resurveyed, he
apparently became convinced that he owned the site occupied by the
Monarch facility, and he executed a deed conveying that site to
Wilkes, presumably describing it as part of the northwest quarter of
Section 10. Shortly thereafter, for unknown reasons, Wilkes agreed to
allow McGray to acquire the site, rather than himself, so the name of
Wilkes as the grantee was erased from the deed, and it was replaced
with the name of McGray. McGray then apparently informed
Monarch that he was the owner of their facility, to which Monarch
evidently objected, so McGray proceeded to file an action against
Monarch, seeking to have title to the elevator site quieted in himself.
McGray argued that the resurvey, revealing that the site previously
conveyed by Haggert to Monarch was actually located in Section 10 and not
in Section 3, was correct, so Haggert had never owned the site in question,
and Tyler had always been the actual owner of it, making Haggert's
conveyance of the site to Monarch ineffective and worthless, while Tyler's
conveyance of the same site to McGray was valid, therefore McGray was
entitled to a decree confirming his ownership of the site in question.
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Monarch argued just the contrary, maintaining that the resurvey was
incorrect and worthless, because it failed to follow in the footsteps of the
original GLO survey, by erroneously rejecting the existing road as the
section line location, since the road represented the strongest evidence of the
original section line location, therefore the site was actually located in
Section 3, and Monarch had legitimately acquired it from Haggert, making
the conveyance from Tyler to McGray null and void. The trial court agreed
with Monarch, that the centerline of the existing road marked the true
original section line location, holding that the deed to Monarch was valid,
while the deed to McGray was of no value.
Once again here, just as in the earlier boundary cases that we have
already reviewed, the Court was confronted with an obviously opportunistic
effort, on the part of McGray in this case, to take advantage of a variance
between the recorded measurements and the monumentation of an original
GLO survey, discovered during a resurvey, that was executed by a survey
party who either failed to recognize, or deliberately neglected to follow,
plainly visible boundary evidence on the ground. The Court plainly realized
that this situation made it once again necessary to clarify and emphasize the
controlling nature of the concept that physical boundary evidence is always
of primary importance in boundary determination. In this instance, just as in
the landmark Arneson boundary case, decided 11 years before, a section line
roadway constituted the decisive physical evidence, perpetuating the original
section line location, yet it was not accepted as such during the resurvey in
question, as the survey crew declined to acknowledge and accept it as
legitimate evidence of the original location of the section line, instead
allowing their measurements to cause them to neglect or reject the road as
original boundary evidence. The strongest possible evidence of the course of
the original survey, short of the original monuments themselves, was
directly beneath their feet, every step of the way, until they departed from
the roadway, electing instead to follow the measurements of record, even as
the record data lead them away from the road, and onto ground bearing no
evidence whatsoever that it had ever been trodden or marked as a section
line by their GLO predecessors. Competing testimony was given by
surveyors representing both sides in this case, presenting a very distinct
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dichotomy in their methodology for the Court to rule upon. The members of
the survey crew that had conducted the resurvey testified on behalf of
McGray, verifying that the northerly section line location placed upon the
ground by them represented the location specified by the GLO plat and field
notes, but the surveyor who had performed the townsite survey for Tyler
testified that he had accepted the centerline of the section line road as
marking the original section line location, on the basis that the road had been
built at a time when the GLO monuments were still in existence. While the
most recently performed survey, relied upon by McGray, was presumptively
correct, the Court noted, and no one questioned the correctness of any of the
measurements that had been made during that resurvey, any value that it
might otherwise have had was eliminated by the testimony, in support of
Monarch's position, that the road had been built based upon the original
section and quarter corner monument locations. The testimony confirming
that the road marked the original section line was dispositive, in the eyes of
the Court, because it made the road itself valid boundary evidence, serving
to perpetuate the original corners and lines, which controlled, the Court
stated, over measurements from any source, including the GLO plat and
field notes. Citing the Arneson case of 1891, previously reviewed herein, the
Court took this opportunity to reiterate that evidence of original
monumentation conclusively controls over measurements:
“It is contended ... that the premises in controversy are a part of
the northwest quarter of Section 10 ... witnesses for both parties
claim to have known the location of the original stake and
mound, establishing the government corner ... The appellant
relies largely upon the evidence of three surveyors, who claim
to have recently made the survey of the section line ...
following the plat and field notes ... appellant insists that the
line as so established by the surveyors gives to the evidence a
decided preponderance in favor of the appellant. But ... the
evidence on the part of the respondent tended to establish the
fact that the original mound was in the center of the highway."
On that basis, the Court upheld the lower court's decision in favor of
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Monarch, supporting the validity of the original section line location, wisely
protecting the long established boundary, and the section line right-of-way
as well, while leaving McGray, quite predictably, unrewarded for his
unscrupulous effort to disrupt the boundary stability provided by the long
settled roadway location. It may well be imagined that Tyler was an innocent
party in this whole affair, and that it was actually Wilkes and McGray who
had motivated the scheme, by financially enticing Tyler to attempt to convey
land to them that Tyler knew he had never owned, but that did not prove to
be the case. Tyler evidently remained personally convinced that he could
prevail in this matter, and seize the land at issue on the north side of the road
from Haggert, and failing to learn any lesson from the outcome of the
McGray case, he proceeded to file another action, in the foolhardy belief that
he could force the Court to alter the position it had taken regarding the
section line in question. Tyler filed his action against Haggert shortly after
the conclusion of the McGray case, and it was argued before the same trial
judge who had handled the McGray case. This judge ruled against Tyler,
entirely consistent with his previous ruling against McGray, but he then
retired, and he was replaced by a judge who proved to be more sympathetic
to Tyler's position. This new judge threw out the decision of his predecessor
and granted Tyler a new trial, but Tyler died before the new trial
commenced, yet his widow opted to extend the legal battle, so she continued
to pursue the matter, on behalf of both her late husband and herself. This
same controversy thus returned to the Court in 1905, as Tyler v Haggert, on
appeal by Haggert, who protested that the new judge had wrongly thrown
out the decision of the retired judge, which had again confirmed the location
of the original section line, following the centerline of the road, in Haggert's
favor. Nearly 3 years after it's initial assessment of the relative value of the
conflicting forms of evidence that had been presented by the various
litigants, the Court fully adhered to it's previous stance, again declaring that
both physical and testimonial evidence negate the value of measurements as
boundary evidence, since measurements take on controlling value only in the
absence of acceptable boundary evidence of a superior variety. Again citing
the Arneson case, and the Randall case of 1893 as well, which we have also
previously reviewed, the Court finally brought this bitter dispute to an end,
reiterating that the testimony concerning the origin of the road, in relation to
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the originally monumented section line, effectively elevated the road itself to
the status of a monument, making measurement evidence of any form
irrelevant, and powerless to control the section line location:
“The question is ... as to where the corner mound was originally
placed by the government survey ... the evidence of the
surveyors on the part of the plaintiff was based upon the field
notes of the original survey ... the evidence of the surveyors on
the part of the defendant was based upon their observation and
knowledge of the original mound ... their evidence was entitled
to the greater weight ... the fact as stated in the McGray case,
that the surveyor who laid out and platted the town site ... in
1884, adopted the center of the highway as the north line of the
town site ... has a very material bearing as to the location of that
corner ... such location must control, without regard to whether
it was located with mathematical correctness ... the original
mound ... was at the center of the highway ... notwithstanding
such monument may not correspond fully with the calls in the
field notes ... the original monument might not have been
placed at the exact point indicated by the field notes ... field
notes could not control."
Just 3 months after the conclusion of the saga that had played out
between Tyler and Haggert, the Court had another opportunity to confirm
the proper prioritization of PLSS boundary evidence, in the 1905 case of
Unzelmann v Shelton. Unzelmann owned the southwest quarter of an
unspecified section, while Shelton owned the southeast quarter, and for
unknown reasons Unzelmann became unsatisfied with the apparent location
of the south quarter corner of the section, so he obtained a survey which
located that corner an unspecified distance further to the east, through the
use of unspecified measurements of record, presumably made from one or
both of the adjoining section corners. The Court however, upheld a lower
court decision against Unzelmann, denying that the resurvey done for
Unzelmann could control the corner location in question, even though
Shelton had neither obtained a survey nor challenged the measurement
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precision manifested in Unzelmann's survey, because no retracement survey
can control PLSS corners or boundaries on the basis of measurement
refinement. Testimonial evidence had been presented, the Court observed,
which had supported the quarter corner location espoused by Shelton as a
valid original location, making it impossible for Unzelmann to prove, or for
the Court to conclude, that the corner in question was utterly lost, thereby
making the measured corner location set forth by Unzelmann irrelevant,
regardless of how well measured it may have been. In so holding, the Court
not only upheld the powerful principle that the burden of proof always falls
upon the party asserting that an original corner is lost and can only be
restored by means of measurements, it also again demonstrated that the right
of reliance on evidence of an original survey can effectively nullify even a
resurvey that is conceded to be materially free of measurement error. In the
1906 case of Lee v Dwyer, the dispute between the litigants was evidently
over the location of both a certain section corner and an adjoining quarter
corner, no further details of the controversy are known however, since the
Court readily disposed of the matter with less than one page of text, having
previously established all of the relevant principles necessary to do so. On
this occasion, the Court deemed the survey evidence to be unworthy of
detailed consideration, given that once again adequate testimonial evidence
affirmed the original corner locations contended for by Lee, concurring with
a lower court ruling in his favor, thereby reinforcing the value of testimony
as controlling boundary evidence. At this point in time, the priorities of
PLSS boundary control seemed to be well settled, but as we shall soon see
that was not yet entirely so, the challenge for the Court was merely evolving,
into a question of how to continue to protect original boundaries against
relocation through the application of measurement science, in an age of
increasingly scarce original physical and testimonial evidence, along with an
ever increasing emphasis upon the employment of improved technological
tools for boundary resolution.
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SWEATMAN v BATHRICK (1903)
Here we arrive at one of the most significant land rights decisions in
South Dakota history, which comes to us as the result of a case that serves to
illustrate the connection between boundary issues and right-of-way or
easement issues, and the interplay of those issues where they overlap, as a
consequence of unclear or incomplete platting and description of lands and
associated land rights. Both boundary and dedication principles factor
heavily into the outcome here, demonstrating that proper recognition and
resolution of easement and right-of-way issues can often be essential to
proper boundary resolution. The location of this controversy is once again
the streets of Deadwood, as this conflict takes place just a short distance
from the site of the Whittaker case of 1900, and like that dispute, this
litigation also stems from the rapid creation of private lots and public streets
amidst frontier conditions, leaving the dedication status of those streets in a
state of legal uncertainty. The Court here relies upon the concept of common
law dedication, already adopted and implemented in the Whittaker case and
others that we have noted, but goes on to expand the application of that
concept to a situation in which the location of a particular public right-ofway was essentially treated as variable during several tumultuous years,
before settling into it's final position. The Court's view of the creation and
dedication status of the right-of-way in question therefore plays out in the
context of a contest over the fee ownership of the right-of-way itself, with all
the implications that carries for the location of the boundaries of the
adjoining properties, which had also been treated as variable to some extent
for a period of years in this scenario, having been repeatedly remapped, prior
to finally being officially platted as city lots. The strong inclination of the
Court to accept and validate existing conditions that have developed through
honest and productive efforts to settle the frontier, in the interest of both
equity and stability, is richly displayed here, as the Court focuses on both
public and private rights created by the acts of the parties as citizens
interacting in good faith, when conveying land with reference to existing
documents of questionable origin. From this situation we also learn that fee
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boundaries may not always exist where one might logically think such a
boundary would exist, since descriptions alone do not have the power to
exclude areas from ownership, or transfer ownership, simply by neglecting
to fully encompass the area being conveyed, because the function of a
description is merely to identify the subject property, and that can be done
without explicitly outlining or defining every bit of it. We also see strong
evidence here indicating that the prevention of the creation of unnecessary
strips in fee is the basic legal premise underlying the rule of centerline
boundary control, as the Court points out that no boundary of ownership is
necessarily created by a right-of-way, because there is no need for a right-ofway to represent an ownership interest in land, and nothing that
unnecessarily deprives a private land owner of fee ownership finds favor
with the Court.
1882 - Suessenbach was the owner of a mineral location claim, which
covered a portion of the city of Deadwood that had been unofficially
mapped, but had never been officially platted. Suessenbach authorized
the creation of a new map or plat, which showed the area along Lee
Street, a fairly short street that connects Main Street and Sherman
Street, which are two prominent thoroughfares that run substantially
north and south. The drawing was completed and recorded, and
Suessenbach and others made use of it, but it was never duly signed or
legally approved, so it did not represent an official or legally binding
plat, it amounted only to another map of a certain portion of the city,
like several other such unofficial maps that already existed.
1883 - A flood struck Deadwood, which apparently devastated the
area around Lee Street, with the result that the existing roadway was
substantially wiped out, and had to be rebuilt. After being
reconstructed, Lee Street was found to be in about the same position
at it's west end, but it's east end, where it connected with Sherman
Street, was about 90 feet south of it's former location, which had been
shown on the Suessenbach map. Evidently no one objected to this
street relocation, so the public simply resumed use of Lee Street in it's
new location.
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1886 - The city engineer began work on a new drawing of the city,
which instituted a number of significant changes in relation to the
previously existing maps of the area, such as renumbering lots and
blocks, and updating the streets to reflect the locations then in actual
use.
1887 - The revised drawing of the city that had been begun the
previous year was completed, and people immediately began making
use of it, by referencing it in documents conveying land in the area,
although it had not yet been approved or recorded. Suessenbach made
several conveyances, selling off most, if not all, of his land in the
vicinity, to various parties, with reference to the new drawing that had
just been produced by the city engineer. One of the conveyances he
made at this time described a small triangular parcel, situated on the
northwest corner of Lee and Sherman, in the area that been part of Lee
Street before it was relocated to the south, and this fragmentary
conveyance would become the focus of the controversy that was to be
resolved in this case.
1888 - The drawing of the city that had been completed the previous
year was formally approved and recorded, and was subsequently
treated as the official plat of Deadwood. Several months thereafter,
Miller, who had acquired most if not all of the land lying along both
sides of Lee Street at an unspecified time, had a new plat made of the
land in the Lee Street area that he owned, and on this plat the east end
of Lee Street was relocated once again, another 23 feet to the south,
placing it about 113 feet south of it's original location, as mapped 6
years before. Miller's plat was approved, this second relocation of Lee
Street was completed, and the public continued to make normal use of
the street, in it's newly altered location.
1891 - The city engineer revised the official plat of the city to match
the plat that had been produced for Miller, confirming the new
location of Lee Street as permanent.
1892 to 1902 - During this period, the public use of Lee Street
continued, and the ownership of the various properties situated on
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both sides of the street presumably changed hands an unknown
number of times. At unspecified times, Sweatman acquired various
properties lying in the block that was located on the north side of the
relocated street, including the area that had formerly been occupied by
Lee Street itself, and Bathrick acquired land lying in the block to the
south of that street, Bathrick's property evidently being located
directly south of Sweatman's property, where Lee Street reaches the
west side of Sherman Street. Sweatman evidently believed that he had
acquired all of the land north of the centerline of Lee Street, as it had
existed since being last relocated in 1888, but Bathrick did not agree
and he contested the extent of Sweatman's ownership. The contents of
the description used in Bathrick's deed or deeds is unknown, but he
took the position that his deed or deeds had included the entire rightof-way of Lee Street itself, so Sweatman filed an action to quiet his
title, extending south to the relocated centerline of Lee Street.
Sweatman argued that the right-of-way of Lee Street had been
originally dedicated by implication by Suessenbach in 1882, regardless of
the fact that the plat or map that had been created for Suessenbach was
unofficial, due to being legally incomplete, and both of the subsequent
relocations of Lee Street had been accepted and treated as valid, so the
dedicated public right-of-way associated with that street had moved along
with it, each time it was relocated. Therefore, Sweatman maintained, he
owned the land north of the Lee Street right-of-way, as it was shown on the
official plat that was revised in 1891, by virtue of his acquisitions of
property in his block, free of the burden of the original Lee Street right-ofway location, as it had been mapped or platted in 1882, although that
original right-of-way location had never been formally vacated. Sweatman
further argued that his property did not extend only to the northerly right-ofway line of Lee Street, as depicted in 1891, it extended south to the center of
the right-of-way, since the right-of-way represented only a dedicated public
easement, and the land within the right-of-way was not owned in fee by the
city, although it had been dedicated to the city, as a steward or guardian on
behalf of the public. Bathrick argued that the right-of-way of Lee Street had
never been legally dedicated, and no portion of the right-of-way centered on
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the roadway location that was currently in use had ever been acquired by
Sweatman, so Bathrick was free to acquire it himself, as he had done,
therefore Sweatman could not successfully claim, or show evidence of
ownership of, any land south of the northerly right-of-way line, as shown on
the 1891 plat. The trial court concluded that no legal or binding dedication
of Lee Street had ever taken place, and Bathrick had legitimately acquired
the land lying directly south of Sweatman's property, in the right-of-way
location shown on the 1891 plat, so Sweatman could not successfully claim
ownership of any property south of the northerly right-of-way line of Lee
Street, dismissing his case.
As can readily be seen, the Court had a wealth of historical
information to deal with in this case, and a number of very basic and highly
important principles would play into the Court's resolution of the situation.
As a preliminary matter, the Court addressed the issue presented by the two
relocations of the roadway in question, and the related issue created by the
existence of multiple maps or plats of the area in conflict, since these factors
had created confusion regarding which plat, and which right-of-way
location, could or should be relied upon as controlling. The Court took
notice of the fact that the mapping and platting done in the Deadwood area
during the early years was to some extent redundant, overlapping or
conflicting, and some maps that had evidently been intended to serve as
plats, were not legally binding, as created, due to various failures to comply
with certain legal technicalities. Yet, the Court clearly realized, the early
maps and plats had been genuinely relied upon by numerous innocent
parties, and they had frequently been referenced in conveyances for
description purposes, making the idea of wholly rejecting or disregarding
those documents practically nonsensical. The popular use of those maps and
plats itself supplied an element of validity to those documents, in the eyes of
the Court, and once having been accepted as valid in this sense, their
relevance to the key dedication issue came into play. The Court agreed with
the concept very wisely and astutely set forth by Sweatman and his legal
team, that the acts of the land owners who created and used the maps or plats
for conveyance purposes made them binding upon all those parties who
bought or sold land with reference to them, making the legal status of those
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documents, as determined through technical compliance with the law, in
their preparation or recording, irrelevant. In addition, since the maps and
plats had been treated as controlling for conveyance purposes, they could
also logically serve to support the concept of dedication, in the view taken
by the Court. Therefore, the Court determined, Sweatman was correct that
Lee Street had been dedicated by implication, as early as 1882, and each
relocation of it had carried the existing public right-of-way along, to each
new location, because the acts of the public, and all of the private parties
involved, revealed that each relocation was fully accepted, and never
rejected or objected to. The many conveyances, all implicitly recognizing
the existence and legitimacy of all of the platted streets, including Lee Street
as it migrated in location, painted a scenario of binding dedication and
acceptance, which had resulted in the creation of an easement in favor of the
public, since a dedication by implication does not represent a conveyance in
fee, as stated by the Court in the Whittaker case, reviewed herein, just 3
years before. Following decisions from Pennsylvania and New York, and
noting that the relevant South Dakota law had been derived from the statutes
of New York, the Court set out what it found to be the most reasonable and
equitable position, with respect to the interpretation of the description that
appeared in the deed to Sweatman, which had been specifically attacked by
Bathrick, as being insufficient to convey any portion of the right-of-way at
issue to Sweatman:
“It is insisted by the respondent that the description ... was
intended to convey that portion of the premises described lying
northerly of the north line of Lee street only. The description is
as follows: That certain fraction of ground commencing at the
northwest corner of Sherman and Lee streets, thence northerly
along Sherman street 17 feet more or less, thence southwesterly
along the southeast line of the present Starr and Bullock lot 30
feet more or less to Lee street, thence in an easterly direction to
the place of beginning ... it cannot be presumed that this
conveyance limited ... the grantees to the northerly line of Lee
street ... purchasers of lots bounded on streets acquire title ...
unless there be a very express limitation of their grants to the
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margin of the street. The law with respect to public highways
and unnavigable streams is the same, in respect to the
presumptions that arise from grants bounded thereon ... Deeds
may expressly exclude the streets, but unless they do, the
implication is ... that half the street is included ... Terms of
description such as these may be regarded ... as importing a
grant to the middle of the street ... The idea of an intention in a
grantor to withhold his interest in a road to the middle of it,
after parting with all his right and title to the adjoining land, is
never to be presumed ... the law has carried out the real
intention of the party, by holding that the title passed to the
center of the street ... conveyances of property fronting on a
street or highway shall be presumed to carry the title to the
center of the street or highway, unless the fee in the street is
expressly reserved in the conveyance ... The contention of the
respondent ... that the description ... limits the title conveyed to
the lines of the street, cannot be sustained."
The position taken here by the Court, with respect to the legal effect
of any description that calls out a road or street right-of-way as a monument,
would go on to be cited as an influential force in a number of future cases
involving right-of-way and boundary issues, making this decision an
important landmark in South Dakota land rights law. Those either preparing
or reading and using legal descriptions should be aware of the fact that a call
to an object, such as a road or street, is a monument call, which makes the
legal presumption that any call to a monument goes to the center of the
called object applicable. As several other courts have done, the Court here
adopted the concept that a roadway or right-of-way is equivalent in essence
to a stream, so just as calls to a creek presumptively go to the center thereof,
calls to a right-of-way do as well. This important concept was already
expressed in two statutes by the time of this decision, which stipulated that
ownership of land is always presumed to extend to the center of any object
cited as bounding the land, and that title to land is always presumed to pass
to a grantee, extending to the center of such an object, representing
codification of the well known principle of monument control. Focusing
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upon these existing laws and fundamental principles relating to description
interpretation, the Court thus rejected Bathrick's suggestion that the calls for
the right-of-way of Sherman and Lee, that appeared in Sweatman's
challenged deed, could control the extent of the title thereby acquired by
Sweatman, and limit his boundary to the edge of each right-of-way. The
very clear and decisive answer of the Court was that numerical calls alone
cannot overcome the operation of the principle of monument control, so
Sweatman's deed had carried his title to the centerline of the Lee Street
right-of-way, as depicted on the 1891 plat, because the deed to him had
failed to expressly reserve any portion of that right-of-way from his grant,
which was what the Court deemed necessary, to successfully express an
intention on the part of a grantor to retain such a strip of land. The
description bar for grantors was thus set very high here by the Court, quite
justifiably requiring them to squarely and forthrightly communicate any
intention that they may have to retain any land, when preparing legal
descriptions, in order to properly inform the grantee of exactly what is being
retained, and thereby overcome the centerline control presumption, rather
than relying on mere description calls to serve that purpose. This specific
position of the Court aligns perfectly with the larger principle, expressly
approved here by the Court, that grantors must never be presumed to intend
to retain ownership of any land consisting of useless strips, since such a
presumption would invite and precipitate extensive litigation, and the Court
has adhered to this principle quite consistently ever since this time. For these
reasons, the Court reversed the lower court's ruling, holding that in fact all of
the lots and parcels owned by both Sweatman and Bathrick extended to the
centerline of Lee Street, as finally relocated, so any deed or deeds held by
Bathrick, allegedly conveying that whole right-of way to him, were invalid,
since his northerly boundary could extend no farther north than the
centerline of the Lee Street right-of-way, as it had been platted since 1891.
Also notably, this case stands for the vital propositions that the concept of
estoppel represents the foundation of dedication, that public use made
without objection is valid evidence of dedication and acceptance, and that
the physical relocation or substitution of an easement location is legally
possible and acceptable, all of which we will again see in operation, as
important factors in future cases.
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Some may question the validity or applicability today of concepts and
principles set forth in a case that took place in a frontier setting, such as the
case just reviewed, but in fact, like all such rules founded upon timeless
principles, the rule of centerline boundary control is not only still alive and
well, it has been reinforced both by statute and by many historic decisions of
the Court, some of which we will later discuss in detail, and one of which
provides a far more modern example of a comparable scenario. In the 2005
case of Tibbitts v Anthem Holdings, a portion of a certain state highway
right-of-way was officially abandoned by South Dakota, leading to a
controversy over who held ownership of the abandoned right-of-way,
Tibbitts, who owned the land to the north of it, or Anthem, which owned the
land to the south of it. The right-of-way in question had been created by
deed in 1933, at which time the relevant land, that would later be acquired in
part by both Tibbitts and Anthem, through which the proposed right-of-way
then passed, was all owned by one party, so the portion of the right-of-way
at issue originally represented a strip crossing a single estate. In 1937, the
estate owner who had deeded the right-of-way to South Dakota conveyed the
property that would later be acquired by Tibbitts, after passing through the
hands of an unspecified number of other parties, and that 1937 grantor chose
to describe the future Tibbitts tract by metes and bounds, which clearly
followed the north side of the right-of-way. Anthem eventually acquired the
remainder of the estate in question, and upon discovering that the legal
description of the Tibbitts property did not extend to the centerline of the
abandoned highway, Anthem evidently became convinced that Tibbitts had
no valid claim to any land within the former right-of-way, ordering him to
remove improvements that he had made within that area, but Tibbitts
responded by filing an action against Anthem to quiet his title to the
centerline of the former right-of-way. A lower court held that the right-ofway had been created in fee, but Tibbitts had acquired the north half of it
through reversion. The Court struck down the lower court's decision
regarding the fee status of the right-of-way, noting that a right-of-way is
always presumed to represent an easement, and not a conveyance in fee, yet
upheld the ruling of the lower court that Tibbitts owned the portion of the
right-of-way lying north of the centerline, on the basis that his ownership
had always extended to the centerline, regardless of the metes and bounds in
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his deed, because the grantor who created the Tibbitts tract in 1937 had not
reserved the right-of-way, so it had passed with each conveyance of that
tract, eventually descending to Tibbitts. The Court thus upheld the principle
that the legal burden to explicitly express any intended reservation always
rests upon the grantor, while highlighting the fact that a typical abandonment
or vacation of a right-of-way merely extinguishes the existence of the rightof-way, it does not represent a fee transfer of any land, emphasizing the need
to properly determine the ownership status of any given right-of-way, as an
elementary part of the process of evaluating boundary locations.
BERNARDY v COLONIAL & US MORTGAGE (1904)
This case introduces the concept of after-acquired title, which is an
important component of the relationship between grantors and their grantees,
that can have a major impact on ownership of land, and therefore upon
boundaries, particularly when multiple adjoining parcels are conveyed in a
single deed and the title of the grantor to one or more of those parcels later
proves to have been inadequate at the time of conveyance. The basic premise
of equity motivating the after-acquired title doctrine is the idea that once a
party who has made a commitment to convey land becomes capable of doing
so, that agreement to convey is automatically executed by operation of law.
This principle obviously serves to mandate honesty and fair dealing, by
making it impossible for an unscrupulous grantor to purport to convey land
that he does not own, then proceed to acquire the land himself, and then
inform his grantee that the grantee did not actually acquire the area in
question, because the grantor did not yet own it at the time of their
conveyance. The 1902 case of Wilson v McWilliams, another interesting
case on the topic of the validity and the legal effect of a deed, is also worthy
of note at this point, since it represents an early example of some related
concepts of major importance, that will later be explored in greater depth. In
that case, McWilliams acquired land that had previously been owned and
mortgaged by Wilson, by virtue of a mortgage redemption, under a verbal
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agreement between the two men that McWilliams would convey the
property back to Wilson. Once McWilliams obtained his deed however,
declaring him to be the sole and absolute owner of the tract, he simply
decided not to honor his oral agreement to convey it to Wilson, instead
keeping the tract for himself. Wilson filed an action against McWilliams,
seeking to compel him to convey the land, as they had orally agreed, but
McWilliams maintained that his deed was superior to any verbal agreement,
so he could not legally be compelled to deed the tract back to Wilson, and
the trial court agreed with McWilliams, quieting title to the land in him. The
Court disagreed however, taking the position that even a deed that appears to
be absolute in form may not actually convey any land, if it can be shown that
the deed was actually intended to function only as a mortgage, and since the
evidence clearly indicated that the deed to McWilliams had been executed as
part of a mortgage redemption process, it had conveyed nothing to
McWilliams, so the tract in question was still owned by Wilson, and
McWilliams was required to deed it to Wilson, to clarify the record. This
result in favor of Wilson demonstrates that an oral agreement relating to a
deed can effectively negate the operation of the deed, and an agreement to
reconvey land, if either satisfactorily proven or conceded, can prevent a deed
from having the effect of an absolute conveyance. In addition, a verbal
mortgage agreement can prevent a deed from being treated as a genuine
conveyance of land, because the statute of frauds is inapplicable to
mortgages, since a mortgage is not a conveyance of land, so parol evidence
can control the legal effect of a deed. The outcome of the Wilson case
foreshadows other important equitable limitations that the Court would
subsequently place upon the application of the statute of frauds to land
rights, as we shall see going forward.
1882 - Taylor settled on a certain quarter section in Kingsbury
County, and shortly thereafter, he mortgaged it.
1885 - Although he had not yet obtained a patent for this quarter
section, Taylor conveyed it to Wilkes, by means of a warranty deed.
Whether or not Wilkes was aware of the existence of the mortgage is
unknown. No longer having any interest in the land, Taylor turned it
over to Wilkes and departed.
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1888 - Since Taylor had failed to meet his obligations or complete the
requirements necessary to obtain a patent, his entry was cancelled by
the GLO, terminating his rights to the quarter. Wilkes was apparently
occupying or using the land at this time, so upon learning of the
cancellation, which rendered his deed from Taylor worthless, Wilkes
filed his own independent claim upon the quarter with the GLO.
1890 - Colonial acquired the mortgage that had been issued by Taylor
in 1882. Presumably upon discovering that Taylor's rights to the
quarter had been terminated, leaving this mortgage worthless, and also
finding that Wilkes was now in possession of the land, Colonial
obtained a warranty deed from Wilkes, conveying the quarter to
Colonial, although Wilkes had not yet obtained a patent himself, and
Colonial recorded this deed. Wilkes evidently went on using or
occupying the land however, in order to fulfill his obligations as an
entryman and obtain a patent for the quarter.
1893 - Wilkes mortgaged the quarter to Smith. Since the deed to
Colonial was recorded, Smith was presumably aware that Wilkes had
already conveyed the quarter, but if he did know of the existence of
the 1890 deed, Smith apparently believed that it was of no value or
effect, since Wilkes did not yet hold legal title to the land.
1895 - The GLO issued a patent for the quarter to Wilkes. Having
completed his obligations, and his involvement with the quarter,
Wilkes ceased his use of the land and departed, apparently leaving the
land unused and idle. Colonial took no action with respect to the
quarter however, so it evidently remained unoccupied, and it remained
in the name of Wilkes, as the owner of record.
1897 - The mortgage issued by Wilkes in 1893 was foreclosed, and a
sheriff's deed was issued to Smith, conveying the quarter to him.
1898 - Smith conveyed the quarter to Cadwell by warranty deed, and
Cadwell then conveyed it to Hortman, also by warranty deed.
1899 - Hortman conveyed the quarter to Bernardy, again by warranty
deed.
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1900 to 1903 - At an unspecified time during this period, Bernardy
apparently learned that Colonial claimed to own the quarter, so he
filed an action seeking to quiet his title to it.
Bernardy argued that he had legitimately acquired the quarter, without
any means of notice that any other parties claimed any interest in it, and the
deed allegedly conveying the land from Wilkes to Colonial was invalid,
because it was executed before Wilkes became the owner of the land, so
Colonial had no valid claim to the quarter, and title to it should be quieted in
him. Colonial argued that the deed executed by Wilkes in 1890 was valid,
because he subsequently obtained his patent, confirming his ownership of
the quarter, and all of the conveyances that had resulted from the foreclosure
of the mortgage issued by Wilkes in 1893 were invalid, because by 1893
Wilkes no longer had any interest in the land to mortgage, so Bernardy had
acquired nothing. The trial court held that nothing that Wilkes had done
prior to obtaining his patent in 1895 was of any significance, and after
obtaining his patent he had forsaken and lost the land by virtue of his
abandonment of it, so the sheriff's deed issued to Smith in 1897 was valid,
and all of the subsequent conveyances, including the one to Bernardy, were
also valid, therefore Bernardy was the owner of the quarter, and Colonial
held no legal interest in it.
Although the long and convoluted history of conveyances and
encumbrances associated with this particular quarter section was potentially
somewhat troublesome, and had proven to be a source of uncertainty and
confusion for the unfortunate parties who became involved with the quarter
as time went by, the Court was up to the task of sifting through the evidence,
and thoroughly analyzing it, to properly resolve the conflict at hand. The
fundamental issue of course, was simply who now owned the land, but since
many apparently valid deeds had been executed, and it was impossible for
all of them to be upheld, the Court would need to apply the appropriate legal
and equitable principles, to determine which of them must be invalidated.
This situation was actually a fairly typical one of it's time, containing the
kind of issues that frequently developed during the years when the original
settlement of the Dakota Territory was taking place, since many settlers did
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things that were foolish, improvident or senseless, similar to what Taylor
and Wilkes had done in this scenario. In fact, settlers all over the west were
uncertain about the extent of the rights that they held to the land that they
were occupying prior to obtaining a patent, but many of them presumed that
the land already belonged to them in effect, because someday it was going to
belong to them, on the assumption that they would successfully complete all
the requirements of the patenting process. Both Taylor and Wilkes had acted
unwisely and in haste, by attempting to leverage their use and occupation of
the land in question for their own personal profit, prior to securing complete
legal ownership of it, thereby creating a problematic situation for their
successors, yet nothing they had done was genuinely fraudulent or outside
the law, so the legal ramifications of their actions had to be determined.
While Taylor and Wilkes had acted very similarly, both mortgaging and
conveying the quarter at issue, there was a distinct difference in the impact
of their actions, which the Court took notice of. Since Taylor had departed
prematurely, and had failed to ever acquire any land rights, nothing he had
done held any value, but the same was not true of Wilkes. Because Wilkes
had successfully obtained his patent, everything that he had done, since the
moment of his occupation or use of the land under his own claim had begun
in 1888, was relevant and important. The effect of the patent, though not
issued until 1895, the Court indicated, was to render all that Wilkes had done
since 1888 valid, as legitimate acts of a land owner, because the patent did
not initiate his land rights, it merely confirmed the legal existence of his
rights to the quarter, which had commenced to accrue in his favor 7 years
before. The principle applied by the Court to resolve this controversy, and
adjudicate the relative rights of all of the parties, is based on the concept
known as after-acquired title, which was already codified in statutes that
were in existence well prior to all of the events that had resulted in the
present litigation, leading the Court to exercise that principle here as
follows:
“where a person purports, by a proper instrument, to grant real
property in fee simple, and subsequently acquires any title or
claim of title thereto, the same passes by operation of law to the
grantee or his successors ... on the subsequent issuance of the
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patent to the grantor (Wilkes) the fee passed to defendant under
the deed (of 1890) ... the after-acquired title of Wilkes passed
by operation of law to the defendant ... the deed from Wilkes to
the defendant ... conveyed Wilkes title to the defendant, not
only as against himself, but as against everyone subsequently
claiming under him, except a purchaser in good faith ... the
conveyance from Wilkes to the defendant was good as against
him and all persons claiming under him ... the plaintiff ... did
have constructive notice of the conveyance from Wilkes to the
defendant ... a purchaser is presumed to know the law ... and
that such prior grantee (Colonial) may have acquired such legal
title by operation of law ... Had the respondent made such an
examination of the records as men of ordinary prudence would
have done, he would have discovered that Wilkes had ...
conveyed the property ... and that Wilkes, at the time he
mortgaged the property to Smith, had no interest in the property
to mortgage, and that Smith acquired no title ... and that he
(Bernardy), in purchasing, would acquire no title to the
property."
The key factor to understanding the outcome seen here is the
realization that a unique relationship exists between each grantor and
grantee, so although Wilkes had not yet fulfilled his burden as the grantee of
the United States, at the time he conveyed the quarter in controversy to
Colonial in 1890, he was nonetheless free to enter a separate relationship
with Colonial as a grantor. Once Wilkes fulfilled his obligations as a grantee
of the United States, the title he obtained by virtue of having earned his
patent made it possible for him to then also fulfill his other role, as a grantor,
under his conveyance agreement with Colonial, so the patent issued in 1895
retroactively gave validity to the conveyance made by Wilkes in 1890. Had
Wilkes failed to ever earn and obtain his patent, Colonial would have owned
nothing, quite ironically, just as Wilkes himself had been left with nothing in
1888, when Taylor abdicated his responsibility as an entryman, leaving
Wilkes with a worthless deed. Under the law, the Court observed, every
grantor and every grantee has definite obligations that they are individually
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bound to uphold and fulfill, on pain of incurring liability for any failure to do
so, therefore upon obtaining his patent, Wilkes was legally bound to fulfill
his commitment to transfer the land in dispute to Colonial, so in fact title to
the quarter had passed directly to Colonial in 1895, by operation of law, as
stated by the Court, without any need for any further action by either party at
that time. The application of this powerful principle, which compels grantors
to follow through on their promises and commitments to their grantees,
represents a clear manifestation of the Court's strong efforts to give effect to
every agreement that can be upheld and protected by any legal or equitable
means. Bernardy's case was based on the premise that one cannot sell what
one does not own, but since he was on notice of the existence of the
recorded 1890 deed to Colonial, he was not seen by the Court as an innocent
purchaser acting in good faith, which robbed his position of any controlling
force it might otherwise have had. Bernardy was mistaken in his belief that
nothing that had happened before the land had been patented could be of any
importance, just as Smith had been mistaken in 1893, in failing to realize
that Colonial's acquisition of the quarter in 1890 was valid and binding, so
neither Smith, nor Cadwell, nor Hortman, nor Bernardy had ever owned the
land in controversy. Having so decided, the Court reversed Bernardy's lower
court victory, leaving him empty handed, one dissenting justice did however
suggest that Bernardy could have valid grounds upon which to file an action
against his grantor, for breach of warranty, and in fact Bernardy's real
mistake was filing his action against the wrong party, since he should have
realized that Colonial owned the quarter, and seen that it was his own
grantor, and not Colonial, who had cheated him. The success of Colonial
here proves that it definitely is possible to convey land that one does not yet
legally own, or as viewed from the perspective of a grantee, to acquire land
from a party who has not yet acquired it themselves, in those situations to
which the equitable rule of after-acquired title is applicable.
The fact that all title conflicts are to be decided on the basis of equity,
rather than upon a purely legal basis, is an important concept, which was
affirmatively set forth by the Court in a series of 3 cases decided in 1910 and
1914, Grigsby v Larson, Grigsby v Verch and Wilson v Grigsby. Day was a
bank President, who evidently owned a substantial amount of land, but he
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was in financial trouble, so he quitclaimed his land to his own bank, in an
attempt to shield it, and parts of it were subsequently conveyed to Larson,
Verch and Wilson. Day then asserted however, that his own quitclaim deed
to the bank had actually been only a mortgage, so he still owned the land,
and he then proceeded to convey all of it to Grigsby. Grigsby then sought to
quiet his title against the 3 grantees of the bank, but he lost all 3 cases, and
each lower court decision against him was upheld by the Court, on the basis
that a grantor, such as Day in this case, cannot be allowed to nullify the legal
effect of his own deed, so the quitclaim deed executed by Day had
functioned as an absolute conveyance of all of his land, and not merely a
mortgage, leaving Grigsby as a subsequent grantee with nothing. The Court
thus protected the 3 prior grantees, against the virtual conspiracy of Day and
Grigsby, by eliminating the testimony of Day through the application of
laches and estoppel. In 1911 however, in Hohn v Bidwell, the Court
provided the further clarification that a quitclaim deed never carries afteracquired title, because a quitclaim deed amounts to a relinquishment of all of
the rights of the grantor to the subject property, but it is limited, by
definition, to the rights actually held by the grantor at the specific point in
time when the deed is delivered. A grantee holding a quitclaim deed
necessarily holds no assurance of the validity of his acquisition whatsoever,
and can therefore register no successful claim that he was cheated in any
respect, even if his own grantor later acquires title to the same land that was
quitclaimed, so a grantor is free to assert ownership of land that he once
quitclaimed, if he can prove that he did not own it at the particular moment
when he quitclaimed it. The 2006 case of Myers v Eich serves as a fine
modern example of the presence and the impact of the same basic equitable
principles that were applied by the Court in the 1902 Wilson case
summarized above, in this instance concerning the legal effect of a warranty
deed. Myers loaned Eich money to redeem land that Eich had mortgaged,
and Myers required Eich to sign a warranty deed, conveying his land to
Myers, to serve as collateral or security, but when Eich was unable to pay
Myers back, Myers asserted fee ownership of the Eich property, based on
the warranty deed, and the trial court quieted title in Myers, as requested by
him, on the basis that a warranty deed is absolute in nature. The Court
reversed the lower court ruling however, holding that even a warranty deed
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can be proven to be merely the product of a mortgage security agreement.
The Court concluded that the deed in question had simply been wrongly
titled, since the title of the document failed to capture the true intentions of
the parties to enter a security arrangement, rather than to complete a
conveyance, invoking the venerable axiom that substance always controls
over form. This case clearly illustrates that extrinsic evidence can operate to
determine the true legal status of a deed, again emphasizing that the outcome
of any title dispute is fundamentally controlled by the relevant principles of
equity.
MURPHY v DAFOE (1904)
Having already noted some of the basic elements of adverse
possession, most significantly the element of notice, which lies at the core of
adverse possession, in the context of some unsuccessful claims, here we
review a typical successful adverse possession claim, resulting from an
unexplained abandonment of land, which was not at all uncommon on the
frontier. The case we are about to review was not the first successful adverse
possession claim made in South Dakota however, so we will also briefly
reference a few other noteworthy early cases. In the 1899 case of Parker v
Vinson, Parker was the record owner of land that she had either neglected or
abandoned for several years, during which time Vinson had occupied and
used it to some extent, under a tax deed which turned out to be invalid.
Parker therefore filed an action against Vinson, and the trial court quieted
title to the property at issue in her, effectively ejecting Vinson from the land,
but also holding that she had to pay Vinson for the improvements that he had
made to Parker's property. South Dakota's first adverse possession statute
was not enacted until 1891, and it required a minimum of 10 years to
complete adverse possession, so no adverse possession claims could be
successfully made until 1901, prior to that time, parties such as Vinson could
only obtain the value of any improvements that they had made to the land
being recovered by the owner of record in any given case. The applicable
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statute, providing for the compensation of ejected parties, like Vinson, by a
recovering record owner, like Parker, did not define a void tax deed as being
a source of genuine color of title, which an occupant like Vinson was
required to show in order to qualify for compensation, so Parker charged that
she should not have to pay Vinson, because his tax deed did not represent
valid color of title. The Court rejected Parker's assertion however, upholding
the lower court ruling that Vinson must be paid, in order for Parker to
recover her land, as it had been improved at Vinson's expense, adopting the
important position that any void document of conveyance represents valid
color of title for purposes of adverse possession. A series of 3 cases that took
place in 1900 and 1901, Houts v Hoyne, Houts v Olson & Houts v Bartle,
appear to mark the first occasion upon which the Court exercised the 1891
adverse possession statute, making Houts the first party to be thereby barred
from claiming ownership of real property. Houts was apparently in the
business of obtaining quitclaim deeds to properties that had been subjected
to a mortgage foreclosure process, from prior owners who supposed that
they had lost their land to foreclosure, and then charging that such
foreclosures had been void, allowing him to then eject the occupants, who
had innocently acquired such land from the party who had executed the
flawed foreclosure. While upholding the lower court's application of the
statutory 10 year limitation on recovery actions in each case, to nullify the
ownership claims set forth by Houts and protect the occupants from ejection,
the Court reiterated that matters of title and ownership of land are controlled
primarily by principles of equity, which was quite fitting, since the Court
recognized that statutory adverse possession actually represents nothing
more than a legislative tool, created to support the implementation of the
equitable concepts of laches and estoppel to land rights.
1875 - Morris was the owner of a 120 acre tract in an unspecified
location in Union county. Whether or not Morris lived on this tract, or
ever made any other use of it, is unknown, but he was the original
patentee of this land. He evidently set out to leave the country,
presumably on either a business errand or a pleasure trip of some
kind, but never returned, and he was never heard from again. He had a
brother who lived elsewhere in Union County, but for unknown
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reasons his brother never made any claim to the tract in question, and
no one else stepped forward to claim it by virtue of relation to Morris,
so it apparently sat idle and unused during the years immediately
following his departure.
1879 - The taxes on the Morris tract having gone unpaid, it was sold
by the county to Marsh. While Marsh never actually occupied the
tract, or made any other actual use of it himself, he did direct Osborne,
who was apparently either an employee or a friend of Marsh, to look
after the land on his behalf, on an occasional basis. Osborne therefore
visited the tract on an unspecified but regular schedule, sometimes
harvesting timber from it, which he then used for firewood and for
fence construction, apparently on his own land, which was
presumably situated somewhere in the vicinity of the Morris tract.
1883 - Marsh conveyed the entire former Morris tract to Barker, who
then took possession of it and made some unspecified improvements
to it. Whether Barker ever actually lived on the wooded tract is
unknown however, and whether she made use of all of it, or just some
small portion of it, is unknown as well, but she apparently allowed
Osborne to continue taking wood from the tract for his personal needs,
which he had become accustomed to doing.
1884 to 1903 - Barker paid all of the taxes on the tract during this
period, but no additional details relating to her use of it are known. At
an unspecified time toward the end of this period, Murphy appeared,
presenting a deed allegedly from Morris, conveying the tract in
question to him, and he apparently either ordered Barker off the land
or demanded that she acknowledge him as the true owner of the tract.
Barker evidently declined to relinquish the property to Murphy, and
instead agreed to convey it to Dafoe, so Murphy filed an action
against both of them, seeking to quiet his title to the tract.
Murphy merely argued that the 1879 tax deed to Marsh was invalid,
and his deed from Morris was legitimate, so he was the true owner of the
tract in dispute, and title to it should therefore be quieted in him. Dafoe and
Barker argued that the tax deed was valid, but they also argued that
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Murphy's claim was barred by the 20 year statute of limitations, since the
possession of Marsh and Barker combined had endured for more than 20
years, and thus met the duration requirement for a successful adverse
possession. The trial court found that Murphy's claim was indeed barred, as
a consequence of the 20 year absence of Morris, who remained the record
owner of the tract, in combination with the sole possession of all of the land
at issue throughout that period of over 20 years by Marsh and Barker, and
thus denied his claim to the tract, without giving any consideration to the
issue of the validity of Murphy's deed.
At an unspecified date, following the completion of the trial of this
case, Barker died, and Conly became the administrator of her estate, so
Dafoe and Conly became the co-defendants, when Murphy decided to
continue this legal battle after Barker's death. This had no impact whatsoever
on the resolution of the issues in play however, because Barker's testimony
was already fully documented as a matter of record, and the legal burden
rested squarely upon Murphy, as the appealing party, to successfully
demonstrate to the Court that the result of the trial had been so flawed or
unjustified as to require the Court to reverse that result. In his effort to
induce the Court to overturn the trial court's decision against him, Murphy
continued to insist that the 1879 tax deed to Marsh was void, and he also
pointed to the very minimal nature of the use that had been made of the land
in controversy during the years that had intervened since the departure of
Morris from the land. The Court adopted Murphy's position that the tax deed
was void, which effectively made this an adverse possession case, since the
case would have been merely a plain contest over the validity of the
competing deeds of the litigants, and possession of the land would not have
been a factor in the outcome, if the tax deed had been acknowledged as valid
by the Court. Murphy had presumably chosen to take the position that the
tax deed was worthless, which forced the defendants to rely on adverse
possession in order to prevail, because he wanted to deflect attention from
the highly suspicious character and origin of his own deed, and he very
likely suspected that in a direct contest between the two deeds, he would
lose. Murphy evidently believed that the use that had been made of the land,
first by Marsh and then by Barker, was too insubstantial to support adverse
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possession, and he also knew that the use made of the land during the period
prior to Barker's acquisition of it from Marsh would be critical, since the
involvement of Barker with the land had not lasted for the requisite 20 year
period. Murphy was apparently a member of a family that operated as a ring
of professional land sharks, so he made it his business to be very good at
seeking out situations such as this one, in which innocent land holders were
potentially vulnerable to attack, and his plan to acquire the former Morris
tract was fairly well devised, yet in this instance all of his efforts would
prove to be for naught, and the Court would see that justice was done. As a
result however, of Murphy's success in questioning the validity of the tax
deed, along with the fact that Barker had held the land for under 20 years,
Dafoe and Conly needed to prove that the use of the land by Marsh, as well
as that of Barker, had been genuinely adverse, in order to show a full 20
years of truly adverse possession, which would bestow title upon the estate
of Barker, by barring the ability of Morris, or Murphy as his successor, to
ever assert any successful claim. In that context, the Court addressed the
evidence as follows, finding that:
“the deed from ... Morris to the plaintiff was inoperative ...
Morris not having been seised or possessed of the premises ...
within 20 years ... Morris having been guilty of great laches,
neglect and delay ... forfeited and lost any claim or right of
action against defendants ... Osborne, while upon the land and
cutting timber thereon, stated that he was acting as the agent of
the Marshes ... this evidence ... was properly admitted ...
Osborne was acting as the agent of the Marshes ... cutting the
wood and looking after the premises ... if the land, though not
inclosed, has been used for the supply of firewood, it is deemed
to be in the adverse possession of the party ... the cutting of
firewood by such agent for the use of his family is an act of
possession of his principal, within the meaning of the statute ...
the essential requirement seems to be that the party shall enter
under a claim of title exclusive of any other right ... the Marshes
claimed the property under their tax deed, and whether that tax
deed was valid or invalid it is not necessary now to inquire ...
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such a conveyance, even void upon its face, constitutes color of
title, and is sufficient for the purpose of founding a claim of
title by adverse possession ... 20 years adverse possession ...
under a written instrument, even though defective, constitutes a
good title as against the plaintiffs ... estoppel is applicable ...
silence estops those whose duty it is to speak ... there is no
principle better established ... he shall not afterward be
permitted to exercise his legal rights ... Where a party has slept
upon his claim ... his laches constitute a bar to his maintaining
an action ... Morris had abandoned the property ... he and his
grantee (Murphy) were estopped from claiming the property."
Despite the fact that the tract in dispute was apparently comprised
primarily, if not entirely, of unenclosed woodland, the Court deemed the
possession of it by both Marsh and Barker to have been adverse, even
though Marsh had evidently never even set foot on the land himself, and he
may never have even seen it. The acts of Osborne, who had acted as an agent
of Marsh, although seemingly quite insubstantial, and definitely highly
transitory in nature, were key to the outcome, since his footsteps on the land
were, in legal effect, equivalent to the presence of Marsh himself. In
essence, Osborne had functioned as a tenant of the tract, even though there
was no evidence that he had ever lived on it, Marsh being his landlord, and
Osborne had made sufficient use of the land in question to support adverse
possession, since the use that had been made of the land by Osborne had
been a use of the type that a typical owner of such wooded land would
normally make of it. The Court had set the standard for the physical acts
necessary to support adverse possession relatively low, since the acts of
Osborne were not sufficient to provide obvious notice of his presence on the
land, to one viewing the land at a time when Osborne did not happen to be
there, indicating that major acts, amounting to constant occupation of land,
are not essential to the completion of a successful adverse possession. The
claims to the tract in controversy that were manifested in the uses made of
the land by Marsh and Barker were genuinely exclusive, the Court indicated,
because their presence on the land emanated from the tax deed, which
represented a source of title that was not dependent upon the title of Morris,
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and was in fact completely antagonistic to his title, so none of their use of
the land, since 1879, had been subordinate or subservient to Morris in any
respect, therefore all of it had been truly adverse to his interest in the land at
issue. Because 20 years of legitimately adverse possession of the former
Morris tract had taken place, the Court agreed fully with the lower court's
holding that no claim to the land made by Murphy, or anyone else, based
upon any conveyance from Morris, could have any legal effect on the
current ownership of the land, so there was no need to evaluate the validity
of the deed that had been obtained by Murphy, and the lower court had
correctly quieted title to the tract in the estate of Barker. Its important to note
that the conflict in this case was over the ownership of the entire Morris
tract, so no boundary issues were in play, and the boundaries of the tract
were not disputed or contested at all, since the concept of adverse possession
of a portion of a tract had not yet been adopted by the Court. Also
importantly, in resolving this case, the Court very wisely recognized the true
meaning of the statutory phrase "seised or possessed" as stipulating the
actual physical presence of the owner of record, or a tenant or agent of his,
on the land, so a record owner who physically abandons his land, as Morris
had done, cannot claim that he is still seised of the land, once he has
physically vacated it. In addition, the Court had also made it very clear that
it recognized the concept of adverse possession as representing the statutory
codification of the ancient and highly venerated equitable principles of
laches and estoppel, two exceedingly powerful tools at the disposal of the
Court, which when applied in tandem, operate to prevent the commission of
such an injustice as Murphy attempted to perpetrate here, thereby employing
the passage of time, to protect the land rights of those who have occupied
land in good faith.
The exploits of a different member of the Murphy clan, who was
operating in Grant County, because the courthouse there had burned down,
destroying the land records and creating chaos among titles, provided no less
than 3 opportunities for the Court to exercise the 1891 adverse possession
statute, which are worthy of note at this point. In Murphy v Redecker, in
1903, the Court quite readily disposed of an assault by Murphy upon the
ownership of a certain tract by Redecker, which Redecker and his
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predecessors had occupied under a sheriff's deed since 1888. Murphy
discovered that Redecker's deed was void, and he also learned that Redecker
had neglected to pay his property taxes on time one year, so Murphy charged
that Redecker could not successfully rely upon adverse possession to retain
his property, because the law required timely tax payment. The Court agreed
that the provisions of statutory adverse possession included good faith, color
of title and payment of taxes, all for a period of 10 years, but finding that an
adverse possessor has no greater obligation to pay taxes on time than any
other citizen, the Court ruled that Redecker had successfully acquired the
property in question through adverse possession, despite the fact that he had
paid his taxes late one year. Just 2 months later in 1903, Murphy was back
before the Court, participating in the case of Murphy v Pierce. In this
instance, Murphy set out to acquire other land that had been formerly owned
by another member of the Barker clan, which had been acquired by Pierce,
by means of a deed from the heirs of Barker, and also by tax deed. Murphy
discovered that both of Pierce's deeds were fatally flawed and were therefore
invalid for different reasons, so he obtained a correct deed from the Barker
heirs and challenged the title held by Pierce. Pierce had satisfactorily
occupied the land at issue for over 10 years however, so the Court rejected
Murphy's contentions concerning the validity of Pierce's deeds as moot and
irrelevant, quieting title in Pierce by means of adverse possession. In 1905,
Murphy pursued yet another such claim, this time attempting to leverage
laws that restricted the rights of native people to convey their lands, in the
case of Murphy v Nelson. Pazi was a native who conveyed his land in
violation of the law in 1889, and it was subsequently acquired by Nelson,
who was unaware of the illegality of that 1889 conveyance. In 1902 Murphy
obtained a deed to the tract in question and charged that since the land had
been in native ownership, and was therefore not subject to taxation, Nelson
could not satisfy the statutory tax payment requirement that had been
established in 1891. The Court again found no merit in the assertions made
by Murphy, ruling that Nelson had acquired the disputed tract by adverse
possession, regardless of whether the tax payments that she had made had
been legally assessed against her land or not, because the mere fact that she
had made the payments fully illustrated the good faith character of her
possession, clearly fulfilling the spirit of that particular adverse possession
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requirement. By the end of their career, the Murphys had served our society
well, albeit unintentionally, by helping the Court to establish several
important ground rules relating to adverse possession, despite losing on
every occasion, and by giving the Court these superb opportunities to
demonstrate how adverse possession operates to protect the land rights of the
innocent. Although adverse possession cases did not yet involve any
boundary issues at this point in time, and still centered solely upon the
relative merits of competing titles covering whole properties, the hand of the
Court would soon be forced to extend adverse possession to engulf cases
involving boundary evidence as well.
STEWART v TOMLINSON (1907)
Much like many of the other relatively obscure aspects of the
ownership and use of land, such as adverse and prescriptive rights, afteracquired title, and dedication, the meaning and effect of the statute of frauds
is sometimes misunderstood by the typical land surveyor, making it a
suitable topic for review herein, since surveyors are charged with properly
preparing and understanding legal descriptions, and descriptions can become
an important factor in cases involving the statute of frauds. The case we are
about to review reveals how the Court deals with unwritten conveyances that
have been put into effect on the ground, creating rights of reliance that
constitute a very powerful equitable force, effectively counteracting the
strict application of statutory law. The Court had acknowledged the strong
influence of equitable factors on land rights transactions, and the need to
treat the statute of frauds as flexible, as early as 1886, in the case of Fideler
v Norton. In that case, Fideler had a verbal agreement with the owner of a
certain quarter section to acquire that tract, and he then turned the matter
over to Norton, who was a land agent, to handle on Fideler's behalf. Norton
decided that he wanted that quarter himself however, so he acquired it
directly from it's owner. Fideler filed an action to compel Norton to convey
the quarter to him, but the trial court dismissed Fideler's claim, on the basis
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that he could show no written evidence of a conveyance agreement, so the
statute of frauds negated his claim. The Court reversed the lower court
ruling, stating that "Equity will never willingly permit the statute of frauds to
be used as a shield in defense of fraud". Declaring that the statute of frauds
was never intended to prevent any agreements from being completed and
given their intended effect, and that an agreement involving land rights
"cannot be avoided, in equity, on the ground that is in not in writing", the
Court required Norton to convey the quarter at issue to Fideler. In 1900, in
Lothrop v Marble, the Court found another valid reason to set aside the
statute of frauds. In that case, Lothrop served as a nursemaid to Rathbone,
who was a very feeble and elderly man, for an unspecified length of time
prior to his death, and out of gratitude for her service to him Rathbone
promised to convey his lot to her. Rathbone died without ever deeding the
lot to Lothrop however, and Marble who was the administrator of
Rathbone's estate, declined to deed it to her, so Lothrop filed an action
against him to compel him to convey the lot to her. The Court upheld a
lower court decision in Lothrop's favor, requiring Marble to complete the
intended conveyance to her, based on the fact that her service to Rathbone
rendered it inequitable and unjust for Marble to refuse to honor the
conveyance commitment that had been made by Rathbone. The basis of this
ruling by the Court lies in the concept of performance, which dictates that
the performance of any agreement by one of the parties to the agreement
creates a right of reliance on the part of that party, compelling the other party
to follow through and perform their own obligations as agreed, and as we
will learn, this fundamental principle controls the decisions of the Court
concerning the applicability of the statute of frauds to any given situation.
1905 - Stewart and Tomlinson were two men who both lived in
Huron, and they had been casually acquainted with each other for
several years, but they had apparently not been mutually involved in
any property transactions or any other form of business. Stewart lived
on a lot adjoining a railroad right-of-way, and the railroad needed to
expand it's operations, so Stewart agreed to convey his lot to the
railroad, which meant that he would need to move. In the deed
conveying his lot to the railroad he reserved the right to remove his
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existing buildings from his lot, so he could move them to his new
property, wherever that might turn out to be, but the railroad evidently
needed immediate possession of his lot, making his need to relocate
quickly quite urgent. Tomlinson visited Stewart, and upon learning of
his friend's predicament, he offered to sell Stewart a group of 4 lots
that he apparently owned, which were situated just a short distance
away on Nebraska Street. The two men then visited the lots, and
Stewart felt that they would suit his needs, so he returned home and
told his wife about Tomlinson's offer. Stewart and his wife then
visited the lots together and Stewart's wife was apparently satisfied
with the idea of moving to that location. Later the same day, Stewart
encountered Tomlinson while downtown, and informed Tomlinson
that he would take the lots, and gave Tomlinson a down payment.
Tomlinson accepted the money and stated that he was about to leave
town on business, but agreed that he would provide Stewart with a
deed to the lots upon his return. Stewart informed Tomlinson that he
intended to begin moving immediately, and also indicated that he
intended to have a row of shade trees planted along one side of the
property he was acquiring, and Tomlinson told Stewart that he was
welcome to go ahead and do so. Over the next several days, while
Tomlinson was away, Stewart moved his buildings onto the
Tomlinson property, and he also had an unspecified number of shade
trees planted on that property by a crew of workmen. Once Tomlinson
returned, Stewart asked him for a deed, and Tomlinson told him that
the deed was being prepared, but was not yet ready to be signed. A
few days later, Stewart again contacted Tomlinson, asking for a deed,
and he offered to pay Tomlinson the full agreed price for the lots on
the spot, but this time Tomlinson indicated that his wife had refused to
convey the lots, so the deal was off. Stewart then filed an action
against Tomlinson, seeking to have him legally compelled to complete
their transaction, by conveying the lots at issue to him.
Stewart argued that a complete conveyance agreement had been
reached and entered between Tomlinson and himself, and he had done
everything that he was required to do under that agreement, so Tomlinson
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should be legally required to provide him with a deed to the property at
issue, even though Stewart could present no written evidence of the
existence of the alleged agreement. Tomlinson argued that under the statute
of frauds, an unwritten conveyance of any land or land rights is absolutely
null and void, and cannot be enforced, so because no written evidence
existed that he and Stewart ever had any conveyance agreement, he could
not be legally required to deed the lots in question to Stewart, and he had the
right to unilaterally terminate their verbal agreement, as he had done. The
trial court found that a valid conveyance agreement had been created
between the litigants, and although it was entirely oral and unwritten, their
agreement constituted a valid exception to the statute of frauds, so
Tomlinson was required to perform his part of that agreement, by deeding
the lots in controversy to Stewart for the agreed price.
The Court very readily disposed of this controversy, in relatively brief
fashion, since there was no dispute as to any of the facts involved, and both
parties acknowledged that an unwritten agreement to convey real property
had been entered and then revoked, the only disagreement between the
litigants was over what the legal consequences of such an utterly
undocumented scenario are. It was very clear that Tomlinson had taken the
position that the statute of frauds enabled him to back out of his agreement
with Stewart simply because he had no other alternative, had he not sought
the shelter of that law, he would have been left with no other means of
escaping the situation that he had created without incurring substantial
liability. His claim that his wife was really to blame, because she was the
one who had actually nixed the deal, was a hollow one, since at this point in
time, men were still expected to always maintain full control over their
wives, so even if that excuse was truthful on Tomlinson's part, rather than
having been contrived by him to hide some other reason he may have had,
his wife's input could not operate to shield him from the need to honor his
own personal commitment to Stewart. The 3 basic requirements of the law,
necessary to minimally satisfy the statute of frauds, are simply the identity of
the grantor and the grantee, a description of the land or land rights that are
intended to represent the subject matter of the deal, and the price, which is
often more broadly defined as consideration, since it does not always appear
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in the form of money. All 3 of those vital elements of a valid land
transaction were obviously present in this instance, the description aspect of
the equation being fully met by the fact that the lots in dispute were admitted
to be simply four typical platted residential lots, capable of being fully
described by mere reference to them by number, and the ownership of those
lots by Tomlinson was never in question. None of these essential elements
however, were ever written down by either party, even in the crudest form,
much less undersigned by Tomlinson, and it was that fact which opened the
door to Tomlinson's attempt to assert that the statute of frauds was
applicable to the situation. The Court observed that the two litigants had
long been friends, although they had never participated in any kind of
business ventures together, and it was evident that this highly cordial, or
even close, relationship between them was the cause of their failure to
properly document their agreement, since both of them fully trusted each
other, and neither of them had found it necessary to treat the other as he
would have treated a stranger. Pointing out that the exception to the statute
of frauds was statutory, the Court decided that the circumstances fully
justified exercising that exception in this case, finding that it was necessary
to do so in order to do justice, and placing great emphasis on the significant
investment that had been made in the land by Stewart, when he had several
mature trees replanted on the lots in controversy:
“Though the contract was not in writing ... the facts and
circumstances bring the case within the exception to the statute
of frauds ... which reads ... No agreement for the sale of real
property, or of an interest therein, is valid unless ... in writing;
but this does not abridge the power of any court to compel the
specific performance of any agreement for the sale of real
property in case of part performance thereof ... It is quite clear
that appellant was fully aware of, and did not object to,
respondent's acts of ownership in the way of transplanting the
large trees at considerable expense, but ... appellant refused to
perform the contract ... by reason of appellant's acts, respondent
was lead into such a position, with respect to the property, that
a failure to perform would result in injury hard to estimate in
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money, and operate as a fraud upon him ... such facts and
circumstances bring the case within the statutory exception."
As indicated by the Court, the agreement in question represented a
contract, and recognition of this fact forms an important aspect of
understanding the operation, and the limitations, of the statute of frauds. It
may be mistakenly supposed that only a written instrument or document can
properly be called a contract, but that is definitely an erroneous view, which
is not in accord with the law. Just as a drawing created by a land surveyor,
showing his work on a particular site or project, is often identified as a
survey, a document expressing an agreement is often called a contract.
Surveyors know however, that drawings alone are not really surveys, under
the law, the only real survey is manifested by the evidence of the survey
work actually done on the ground, and contracts are perfectly analogous to
this, a document alone is never a contract, regardless of what it says or how
it was entitled, a document is merely one form of evidence of the agreement
expressed in it, the actual agreement itself is the true contract, and it can
therefore exist, even in the absence of any written evidence whatsoever. The
fundamental failure of those parties, such as Tomlinson, who may believe
that the statute of frauds can be used as a tool to destroy an existing
agreement, is that such a notion represents a distortion of the intended use of
the statute, which the Court will not allow. Once he admitted that an
agreement had existed, Tomlinson was bound to either fulfill his part of it, or
financially relieve Stewart of his loss, the only question was whether or not
he could retain ownership of the lots in dispute, and since it was clear to the
Court that completion of the actual agreement was the only appropriate
solution, the Court upheld the lower court ruling, requiring Tomlinson to
divest himself of the lots, as he had agreed to do. Tomlinson certainly could
have boldly denied that any such agreement was ever made, and simply
claimed that Stewart was lying, but that would have been very unwise, since
selecting that option could very well have lead to his conviction for perjury,
if it had been discovered that his accusation was in fact a lie. The most
critical factor in statute of frauds cases involving land rights, just as in many
boundary cases, is the element of reliance, and in this instance it was plain
that Tomlinson had found his friend in a difficult situation, and Stewart had
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innocently and justifiably relied on his friend's commitment of assistance, so
Tomlinson could not equitably be allowed to ignore the injury he had done
to an innocent party. Had Stewart not invested any money or labor in acting
on Tomlinson's proposal, the matter would have been entirely different,
because there can be no damage in the absence of reliance, and no adverse
consequences would have ensued from allowing the agreement to be
terminated. Since Stewart had made a major investment however, in having
many trees planted, which was strong evidence of an agreement that was
intended to be permanent, the Court concluded that invoking the exception
was the only equitable remedy. In so ruling, the Court had made it clear that
all actual agreements, once either proven or conceded to exist, can be treated
as binding, some simply require litigation, and the application of the Court's
equitable power, to compel their enforcement, and since the overall goal of
the statute of frauds is to substantiate existing agreements, the Court always
retains the option of declining to allow the statute itself to become a tool of
fraud.
It may be noted that in all of the statute of frauds cases mentioned to
this point it was the grantor who unsuccessfully sought the protection of that
statute and the grantee who prevailed by overcoming it's effects, but that is
not always the case, a grantor can also overcome the statute of frauds. In the
case of Townsend v Kennedy in 1894, Johnson was a land agent, who was
acting on behalf of Townsend, who owned several lots in Pierre, and
Kennedy agreed to purchase all of those lots, after negotiating a deal through
correspondence with Johnson. A deed signed by Townsend, conveying the
lots in question to Kennedy, was placed in escrow by Johnson, awaiting
payment of the price for all of the lots, which had been agreed upon between
Johnson and Kennedy. Kennedy advertised the lots for sale, but he
apparently discovered that there was little or no interest in the land, which
caused him to decide that he did not want the lots, so he informed Johnson
that their deal was off. Townsend filed an action to compel Kennedy to
complete the transaction as agreed by paying for the lots, but Kennedy
insisted that any such agreement was null and void under the statute of
frauds, because Johnson had no written authority to act on behalf of
Townsend, therefore nothing that had been done by Johnson had been
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relevant or binding, leaving Kennedy free to pull out of the deal. In
upholding a lower court decision in favor of Townsend, the Court adopted
two important positions pertaining to the statute of frauds, the first being the
principle of ratification. Since Townsend himself had signed the deed to
Kennedy, Townsend had ratified all of the actions that had been taken by
Johnson in arranging and coordinating the transaction in question with
Kennedy, so the acts of Johnson, the Court observed, were equivalent to acts
of Townsend himself. In addition, the Court stated that the correspondence
between Johnson and Kennedy was entirely sufficient to satisfy the statute of
frauds, because such evidence need not appear in a deed, nor in any single
document, such evidence can consist of mere notes and memos, and it need
only support a reasonable inference that a conveyance agreement existed, to
meet the statutory requirements. Having thus determined that adequate
written evidence of a binding conveyance agreement existed, the Court
agreed that Kennedy was legally required to accept the deed and pay
Townsend for the lots. The Townsend case illustrates that the Court will not
allow grantees to escape their obligations by unjustifiably invoking the
statute of frauds, any more than it will allow grantors to do so, and it also
highlights the difference between circumstances that remove a transaction
from the statute of frauds, such as those that were present in the Stewart
case, and evidence that actually satisfies the statute of frauds, the presence of
which enabled Townsend to prevail.
The 1908 case of Phelan v Neary also provides a prime example of the
importance of understanding the true nature and value of specific forms of
evidence relating to land rights, in the context of a controversy over the
applicability of the statute of frauds. Neary was the owner of a certain
quarter section in Hyde County, and she apparently knew or met Phelan, and
they had some conversation about the possibility of Neary conveying her
land to Phelan. Several letters subsequently passed between Phelan and
Neary, all making some type of reference to the proposed conveyance of
Neary's property to Phelan, but none of them contained any details outlining
the intended transaction or expressed any definite commitment on the part of
either party to complete the transfer of the tract. Nevertheless, Phelan
evidently got the idea that the plan to convey the land to him was definite, so
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when Neary eventually decided not to sell him her tract, Phelan filed an
action against her to compel her to do so. Phelan or his attorney apparently
believed that his oral conversation and his written correspondence with
Neary, concerning the proposed sale of her property to him, were sufficient
to either satisfy the requirements of the statute of frauds, or to constitute a
valid exception to that statute, presumably based on the results of the cases
that we have just discussed, but the trial court informed him that he was
mistaken in that regard, and the Court upheld the lower court ruling against
him. Phelan's principal error was his failure to distinguish evidence that
negates the legal effect of the statute of frauds from evidence that indicates
adequate compliance with it. Phelan was correct in recognizing that
correspondence can satisfy the statute of frauds, as illustrated by the
outcome of the Townsend case, but in order to do so, the written notes or
letters must reveal a complete agreement, not just the hint or the suggestion
of an agreement, or a mere discussion about a potential agreement, and
Phelan's correspondence failed to accomplish that, so unlike Townsend, he
could not prove that the written elements of a complete conveyance
agreement existed. Neither could Phelan prove that a scenario representing a
legitimate exception to the statute of frauds existed, as Stewart had done,
eliminating the need for any written evidence, because unlike Stewart,
Phelan had never taken any action or occupied the land in question, so
Phelan's claim was doomed, since it failed to either satisfy or circumvent the
statute of frauds. Unwritten evidence, such as that presented by Stewart, can
never satisfy the statute of frauds, the Court reiterated, it can become
controlling only when it serves as proof of performance, and thereby
generates an exception to the intended operation of that statute. Going
forward, we will look on as many other interesting conflicts over
conveyance agreements unfold, and watch as the Court wisely handles them.
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CITY OF WATERTOWN v TROEH (1910)
Returning to the subject of city streets and alleys, and more
specifically the topic of dedication, here we examine a case that involved the
use of only a small portion of one platted lot as an alley, yet was unusually
complicated, due to the fact that a number of legal descriptions had been
sequentially created by the owner of that lot, containing reservations that
made conflicting references to the intended use of various portions of the lot,
in the process of dividing it for conveyance to different parties. Fortunately,
there is no indication that any surveyors were involved in the creation of
these unclear descriptions, and from the nature of the language that was
used, the descriptions would appear to have been created by a neophyte in
the art of description composition, quite possibly the land owner himself.
While the errors and problems manifested in the various descriptions do not
involve the location of the area in controversy, they do have a strong bearing
upon the location of the boundaries of the properties adjoining that area,
since the ownership status of the alley in question is very much at the heart
of this dispute, and the core issue, from the defendant's perspective, is
whether or not he owns, and has the right to build upon, the portion of the
alley crossing his property. As has already been noted herein, dedication can
occur in a variety of ways, and the circumstances under which a dedication
takes place are instrumental in determining the ownership status of the
dedicated area. While a fee dedication can never occur by means of
implication, through common law dedication, and even statutory
dedications, made through the use of properly documented and approved
language, are presumed to create an easement in favor of the public, the
intent to dedicate land in fee can be either expressly stated or statutorily
mandated. A private land owner cannot obstruct a right-of-way that has been
dedicated for purposes of travel of course, regardless of whether it was
dedicated as an easement or dedicated in fee, because even if it represents
only an easement, and the underlying land therefore belongs to a private
party, that party is servient to the dominant interest in the dedicated area that
has been vested in the public. In order to correctly delineate the location of
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boundaries of fee ownership however, either on paper or on the ground,
surveyors are inevitably required to utilize their professional judgment to
evaluate the status of each right-of-way they encounter, and indicate whether
it represents a distinct tract of land in separate ownership, or a part of the
subject property being surveyed, which is merely burdened with either a
public or private easement. While the conclusions of land surveyors in that
regard are never legally binding on the parties, such decisions made by
surveyors based on their analysis and opinion of the meaning of existing
legal descriptions are often relied upon by land owners, creating potential
liability for the surveyor. This makes properly understanding the legal
implications of description language, and being able to distinguish
ambiguous language from unambiguous language, highly relevant to the
surveyor's ability to recognize and properly assess the value and effect of
such documentary evidence on boundary locations.
1880 - Johnson was the owner of a portion of a platted city block in
Watertown. The northern part of this block was bounded by a platted
public alley on the south and by platted city streets on it's other 3
sides. 14 typical rectangular lots were platted in this northern part of
the block, each of them being 165 feet long, running north to south,
and being 25 feet wide, with Lot 1 at the east end of the block and Lot
14 at the west end of the block, so all 14 lots were bounded on the
south by the platted alley. Johnson owned Lots 1 through 5,
comprising the east 125 feet of this portion of the block. Whether or
not the rest of this block was already occupied at this time is
unknown, but Johnson's portion of the block was apparently vacant
and undeveloped. Johnson evidently decided to sell off these lots,
rather than making any use of them himself, and his first conveyance
was to Pierce. Johnson sold Pierce the south 25 feet of Lots 1 through
5, being a strip of land lying directly along the north side of the
existing platted public alley, and in this deed Johnson reserved the
west 12 feet of Lot 5 "for a public alley". What specific use Pierce
made of his land is unknown, but he did evidently acknowledge the
west 12 feet of Lot 5 as having been intended for access purposes,
since he never built anything in that area, and he never obstructed that
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12 feet in any way.
1881 - Johnson sold the remainder of his land to other parties, whose
names are unknown, by making two additional conveyances. He first
conveyed the north 117 feet of Lots 1 through 5, and in this deed he
stated that this conveyance was "Subject to the right-of-way
heretofore granted to Pierce ... over a strip 12 feet in width along the
west line of said tract for a public alley", despite the fact that he had
never granted any right-of-way to Pierce. The execution of this deed
left Johnson with a 23 foot strip of Lots 1 through 5, lying in between
the two portions of the lots that he had sold, which he then proceeded
to sell "reserving, however, a right-of-way 12 feet wide across the
west end of said tract" without making any reference to this last
reservation as being public in nature.
1882 to 1898 - The land in this block was developed during this
period, including those portions of the block that been sold by
Johnson, and all of the owners of improved land in the block used the
12 foot strip mentioned in the deeds that had been composed by
Johnson as an alley. There was evidently also an unspecified amount
of use made of this unplatted alley by the public, and it remained
unobstructed by anyone throughout this period.
1899 - Troeh acquired the tract that had previously been owned by
Pierce, and he built a fence around his property, enclosing the south
25 feet of the unplatted alley in so doing. For a few months, no one
objected to this, and the alley remained in regular use, because
everyone just drove around the west end of Troeh's fence, which they
were able to do because the portion of Lot 6 lying directly west of the
unplatted alley was still unimproved at this time. After a few months
however, the owner of that portion of Lot 6 informed Troeh that he
intended to erect a building on his land, so Troeh would have to move
his fence, in order to allow the use of the unplatted alley to continue,
and Troeh complied by moving the west end of his fence 12 feet to the
east, thereby allowing travel along the original route of the unplatted
alley, over the west 12 feet of Lot 5, to resume in it's previous
location.
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1900 to 1909 - Use of the unplatted alley continued without incident,
until an unspecified time toward the end of this period, when Troeh
began the construction of a new building, which evidently blocked the
south end of the unplatted alley, either partially or totally. All of the
other land owners in the block apparently recognized the unplatted
alley as being public in character, and they all wanted it kept open, so
none of them contested Watertown's claim that it was a public alley.
Troeh nonetheless refused to cease his construction activity and allow
traffic to proceed unimpeded, so Watertown filed an action against
him, seeking to have the unplatted alley officially declared to be
public, which would enable the city to order Troeh to remove his
building from the west 12 feet of Lot 5.
Watertown argued that the three conveyances made by Johnson had
adequately expressed his intention to create a public alley covering the entire
west 12 feet of his land, and that the subsequent use of that 12 foot strip
supported and confirmed Johnson's intentions, so the west 12 feet of Lot 5
had been legally dedicated and accepted as a public alley, which Troeh
therefore had no right to block in any manner. Troeh argued that the
language used by Johnson, with regard to the strip in question, when deeding
away his land, was too unclear and inconsistent to legally create a public
alley, and Johnson had actually intended to create only a private easement
for his own use, which had never come into existence, because Johnson had
later sold off all of his other land in the block, and had departed and
abandoned the intended easement without ever making any use of it. Troeh
also asserted that since a statutory process existed, governing the creation of
public alleys, Watertown should not be allowed to claim any public alleys
that had not been created through that statutory process. Therefore, Troeh
maintained, no unplatted alley had ever been legally dedicated, and no
easement or right-of-way existed on Lot 5, so he had acquired the entire
south 25 feet of Lot 5, and he had the right to make full use of that area, just
as he saw fit. The trial court ruled that Johnson had intended to create a new
public alley, and to dedicate it in fee to the public, and the actual use of the
dedicated strip was legitimate evidence of the acceptance of that dedication
by the public, so Watertown owned the west 12 feet of Lot 5, and Troeh had
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never acquired it.
Although the main focal point of this controversy was obviously the
basic question of whether or not the allegedly public alley existed, the most
interesting aspect of this dispute was the conflict over the true meaning of
the varying language that had been used by Johnson, in composing the 3
deeds by which the unplatted alley had allegedly come into existence. Since
the 3 properties traversed by the alley in question had all been created by the
same grantor, one might well expect him to have used consistent language in
all of his deeds, in order to make his intentions perfectly clear, but that was
unfortunately not the case. Since Johnson was the undisputed owner of all of
Lots 1 through 5, he possessed the legal authority to create private easements
anywhere upon his land, or to dedicate any portion of his land to public use,
and if he had successfully expressed his intention to execute a public
dedication in a clear and unambiguous manner, no controversy such as this
one would ever have arisen. The inconsistency in the descriptive language
used by Johnson however, is typical of the results that are produced when an
individual who lacks experience using descriptive language, and who is
unfamiliar with the process of interpreting legal descriptions, attempts to
prepare such a description. The Court agreed with Troeh that the language
used by Johnson was ambiguous in a number of respects, in particular
Johnson's inconsistent use of the terms "reserving", "right-of-way" and
"subject to", all of which can carry differing legal implications, left his true
meaning and intentions less than completely clear, but the Court declined to
adopt the view that any such technical details should control the rights of the
parties. A reservation can create either an interest in fee or an easement,
depending upon the context in which it is made, and upon the circumstances
relating to the conveyance, a right-of-way is typically presumed to represent
an easement, but can also represent a fee interest, and the phrase "subject to"
typically operates only as a form of recognition of an existing right, and is
legally insufficient to create any new rights. In addition to his use of such
problematic terminology, Johnson had also used conflicting language
regarding exactly who was really intended to have the benefit of the 12 foot
strip that he had created, since although he had indicated in the first and
second deeds that the alley was to be public, he had also reserved it to
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himself and his successors in the first and third deeds, and he had described
it as being intended for the benefit of Pierce in the second deed that he had
executed. In view of the presence of all this ambiguous and even mutually
contradictory language, it was little wonder that litigation and adjudication
had proven to be necessary to resolve the rights at issue, and Johnson was
evidently no longer available to provide any clarification of what his real
intent had been, but the Court was fully prepared to slice through this
linguistic Gordian Knot, and settle the matter in accord with common sense,
explaining it's view of the legal ramifications of this scenario as follows:
“ ... it appears to us that such deeds, especially when taken in
consideration with the other facts shown, clearly prove an intent
on the part of Johnson to dedicate such strip for public use ...
Examining carefully these deeds, it is apparent that ... the
reservation is to Johnson ... this is not a reservation to Johnson
and his grantees ... Taking this into consideration, together with
the express declaration that it is a public alley, it is hard to
escape from the conclusion that it was his intention that this
become a public rather than a private way ... Johnson
acknowledged that he had granted to Pierce the west 12 feet ...
Reference to the deed to Pierce shows the same contained no
reservation whatever ... in favor of Pierce ... We must therefore
conclude that Johnson ... intended to reserve this strip as a
public alley and not pass it by such deed ... it will not be
presumed that it was his intent to dedicate, for public use, a
mere cul-de-sac ... in the last deed, Johnson reserved from the
effect thereof the said 12 foot strip connecting the two strips in
the other deeds ... He had already conveyed all the rest of said 5
lots, and certainly this reservation could not have been intended
for his own use ... he knew he had already dedicated this land to
the public ... intent to dedicate may be shown by the use of the
land in question ... It is claimed by the appellant that ... it was
never accepted as such by the corporate authorities ... and there
could not be an acceptance through public use ... but the great
weight of authority is to the contrary ... it was shown that for
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some 18 or 19 years this tract had been openly used by the
public, that was ample to prove an acceptance prior to the time
defendant received his deed ... the corporate authorities ... fully
accepted this strip of land as a public alley."
The Court thus adopted the position that the best evidence of the real
intent of a grantor, given such ambiguity in the language of his conveyances,
is very often the actual use that is made of the land in question, once all of
the relevant conveyances have been completed, and the land has been put
into use by the grantees. In effect, the Court very simply and wisely allowed
the physical conditions that had developed on the ground to govern and
control it's interpretation of Johnson's original intent, sweeping aside the
portions of the descriptive language that he had carelessly bungled or
erroneously employed. Quite logically, the Court observed that there was no
evidence supporting Troeh's assertion that Johnson had not intended to
create a continuous alley, running the full length of Lot 5, because even
though it was created in 3 segments, it had always been used and treated as
one continuous strip. This dedication, the Court also noted, was not a
common law dedication, supported only by implication of law, it was an
express dedication, because it's origin was found in written evidence,
consisting of the 3 relevant deeds. Under the Court's interpretation of
Johnson's words, he had reserved the 12 foot strip unto himself in fee, on
behalf of the public, so it had never been conveyed to any of his grantees,
and had passed directly to the public upon his departure, once his last
conveyance was completed, fulfilling what the Court deemed to have been
his original vision and intent. In taking this perspective, the Court eliminated
any ambiguity that had been introduced by Johnson's use of the phrases
"right-of-way" and "subject to", holding that Johnson's references to the
alley as public negated Troeh's suggestion that these phrases could have
been intended to indicate that the alley was merely private, or merely an
easement, or merely a personal right reserved to Johnson alone, as an
individual. The Court also found no reasonable basis for Troeh's claim that
the existence of a statutory dedication process eliminated all other forms of
dedication, rejecting that contention on his part, and upholding the right of
any land owner to make an offer of dedication of any portion of their land by
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any means they may deem appropriate, as Johnson had done. In addition, the
Court held that even very limited or minimal public use can often be
sufficient to represent public acceptance of an offer of dedication, and even
if the extent of the public use had not been sufficient for that purpose in this
instance, Watertown's legal action itself also constituted a valid form of
acceptance of the alley. Troeh's temporary blockage of the alley, for a few
months in 1899, when he had mistakenly extended his fence 12 feet beyond
his westerly boundary, was also dismissed by the Court, as being of no
significance and providing no support for his position, given that he had full
notice of the existence of the alley prior to acquiring his land, since it had
already been in actual use for several years by that time, and on that basis
alone he should have known that he never had any valid claim to the alley.
Having concluded that the lower court was entirely correct in it's assessment
of the situation, the Court fully upheld the ruling against Troeh, thereby
approving the concept that a portion of a platted lot can be effectively
converted into a public alley, by means of a dedication for that purpose,
made by a party holding the authority to make such a dedication, which can
be made either in the form of an easement or in fee.
Only 3 months after deciding the case just reviewed, the Court had to
deal with another controversy involving right-of-way issues, in the 1910
case of Lowe v East Sioux Falls Quarry. In that case, an old existing
roadway was adopted by the city council of East Sioux Falls as a public
right-of-way in 1899, crossing land owned by the quarry company, although
this roadway was located outside a nearby portion of the section line rightof-way, which also passed through the quarry property, but which had never
been used for purposes of travel. Lowe was evidently an owner of some
nearby land, who found the old roadway to be unsuitable to his needs, so he
filed an action demanding that the section line right-of-way running through
the quarry be improved and made available for public travel, but the quarry
resisted, because it owned buildings that were occupying the section line
right-of-way. The company argued that the section line right-of-way that
Lowe wanted opened had been either abandoned or vacated by the failure of
the public to ever utilize it for travel, in combination with the use of the old
roadway for that purpose by the public, and a trial court agreed, rejecting
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Lowe's request. The Court reversed the lower court decision however,
mandating that the county open the section line as requested by Lowe,
noting that a section line right-of-way cannot be abandoned or vacated
merely by non-use for any length of time, and stating that the public use of
the meandering old road a few hundred feet away from the section line was
completely irrelevant to the ongoing perpetual existence of the section line
right-of-way, so the company was required to move it's structures to some
location outside the section line right-of-way. Yet another right-of-way
dispute came to the Court in 1912, in the case of Roche Realty v Highlands,
which was centered upon the status of an old roadway running north out of
Aberdeen. Highlands owned a tract of land lying directly north of Aberdeen,
but south of a tract owned by Roche, and an old roadway connecting the
Roche property to the city had long been in use by the public. The road in
question passed more or less through the center of the Highlands tract, but
since that property was vacant, the route of travel had apparently meandered
around over the course of many years. Roche wanted to develop it's tract, so
it filed an action seeking a judicial declaration that the road at issue had
become a public right-of-way, either through prescription or through implied
dedication, but the Court upheld a lower court ruling dismissing Roche's
claim and denying that the road was public. In so doing, the Court took the
important step of expressly announcing it's approval of certain language that
had been used in territorial statutes, concerning public travel and the
acquisition of public right-of-way, which had the effect of outlawing the
acquisition of any public right-of-way by prescription in South Dakota, on
the grounds that it represented a taking of private land rights without
compensation. The Court then went on to also determine that in this instance
the old meandering road had never been dedicated by implication, since it's
location had remained perpetually subject to variation and had never been
clearly defined by steady use of any particular path. This decision of the
Court, flatly denying the validity of the concept of prescriptive public
easements, provides great insight into the frequent reliance that the Court
would subsequently place upon the concept of dedication, which we will see
play out over the coming decades.
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KENNY v MCKENZIE (1910)
As we have already repeatedly seen, both legal and equitable
principles have always been vital to the proper resolution of land rights
conflicts and disputes of all kinds, but the way in which such principles have
been utilized by the Court has evolved over the decades, and the case we are
about to review marks a major point of transition in the perspective of the
Court on the proper use of principles of equity, to counter and balance the
otherwise rigid application of statutory principles of law. While statutory
adverse possession is not a factor in this case, it should be noted that the
ultimate result is the equivalent of the outcome that would have resulted
from a successful adverse possession claim, showing the inclination of the
Court to apply equitable principles to do justice, when the statutory tools that
are available to the Court prove to be inadequate, and it is this same
inclination that leads to the judicial blending of title and boundary issues,
which will play out in cases yet to come. Observing the definitive statements
that were made by the Court in 2 earlier cases is particularly helpful in
understanding how the viewpoint of the Court on the proper treatment of
controversies over title to land has changed and developed from the early
days to where it stands today. In the 1902 case of Reichelt v Perry, Reichelt
was a simple homesteader, apparently ignorant of the law, who claimed that
he had unintentionally quitclaimed his land to Perry, who had defrauded him
by lying to him about the meaning of the document that Reichelt had signed.
Reichelt wanted his own quitclaim deed to Perry to be declared void, in
order to quiet his title to his land, so a question of title was presented by this
situation. The Court ruled against Reichelt, deciding that his evidence was
insufficient to prove that any fraud was involved in the conveyance that had
taken place between Reichelt and Perry, but in so holding the Court
expressly reiterated it's position that all actions involving title issues were to
be decided as matters of equity, rather than matters of law. This view
represented the historically accepted treatment of title conflicts, but the days
of such categorization of land rights disputes were numbered. In 1908, in the
case of Burleigh v Hecht, Burleigh was the owner of record of a certain
tract, which she had apparently long neglected, failing to visit her land or
even to pay any taxes on it for several years, while Hecht was the party who
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had obtained a tax deed to her property, and he had subsequently used the
land at issue and paid all the taxes on it for many years. Upon discovering
that her land had apparently been lost for delinquent taxes, Burleigh sought
to recover it, and Hecht was required to resort to adverse possession and
laches in his effort to defend his ownership of the land, since his tax deed
proved to be invalid. Cognizant of the recent enactment of certain statutory
provisions governing judicial procedures, suggesting that matters of title
based on possession should be treated as matters of law, and not matters of
equity, the Court held that the arguments made by Hecht, all being equitable
in nature, were irrelevant and could not prevail, and therefore quieted the
title of Burleigh as requested by her. This highly controversial decision of
the Court, effectively eliminating all equitable factors from consideration in
land rights disputes, set the stage for the climactic judicial battle over the
proper roles of law and equity in land rights litigation, which played out in
the case that we are about to review, setting the course for future judicial
treatment of controversies involving the adjudication of land rights.
1889 - The Kennys were two brothers who owned an unspecified
quarter section of cropland in Brown County. They mortgaged their
land to a company that was based in Minnesota, as security for a loan,
apparently to obtain money to launch a mining venture in the Black
Hills.
1890 - The company that was holding the Kenny mortgage assigned it
to another mortgage company that was based in Canada.
1896 - The Kennys having evidently failed to make any payments on
their mortgage, it was foreclosed by the Canadian mortgage company.
1897 - The quarter owned by the Kennys was conveyed to the
Canadian company, by means of a sheriff's deed, pursuant to the
mortgage foreclosure. By this time, the Kenny brothers had split up,
and one of them had returned from the site of the mining venture to
the land owned by the brothers in Brown County. One brother was
evidently residing on their quarter and cultivating it, while the other
brother continued to conduct their mining operation. McKenzie was
an employee of the Canadian company, and he informed the Kenny
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brother who was occupying the quarter that the brothers had lost their
land, and it was now owned by his company. McKenzie, acting on
behalf of his company, filed an action against the Kennys, claiming
ownership of the crop that was currently growing upon the quarter,
but a settlement was reached, so that legal action was dropped. The
Kenny brother who had been occupying the quarter surrendered
possession of it to McKenzie, but apparently remained in the vicinity
and took up residence elsewhere nearby, while McKenzie took control
of the quarter, although whether or not McKenzie made any actual use
of the land himself is unknown.
1901 - The mortgage company conveyed the quarter section in
question to McKenzie, and he evidently continued to function as
either the occupant of it, or as the landlord over it, there being no
indication of who was occupying the land, or to what extent it was
being used.
1902 to 1908 - At an unspecified time during this period, either the
Kennys or someone operating on their behalf apparently conducted an
investigation into the details of the mortgage foreclosure by which
they had lost their quarter, and it was discovered that the assignment
of the mortgage in 1890 had been improperly executed and was
technically illegal or potentially illegal. Upon learning about this, the
Kennys realized that they might be able to successfully claim that they
still owned the quarter which they thought they had lost, so they filed
an action against McKenzie, seeking to quiet title to the quarter
section that McKenzie had acquired pursuant to the foreclosure in
themselves.
The Kennys argued that the transfer of their mortgage from the
company in Minnesota to the company in Canada had not been executed in
compliance with the law, and for that reason the Canadian company had no
right to foreclose their mortgage, so the resulting acquisition of their quarter
section by that company had been a legal nullity, therefore they were still the
true owners of the land at issue. McKenzie realized that he had not been
occupying or using the land in controversy long enough to prevail on an
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adverse possession claim, so he argued that the assignment and foreclosure
of the mortgage in question had been legally performed, but even if it had
been illegal in some technical respect, he further maintained, any claim to
the land made by the Kennys should be denied, on the basis of laches and
estoppel. The trial court indicated that it made no difference whether the
mortgage assignment had been legal in all respects or not, because certain
curative statutes had been passed, which had the effect of rendering such
technical flaws irrelevant, and also stated that McKenzie was correct that the
Kennys were estopped, by their subsequent conduct, including acquiescence
with respect to the fate of their land, from making any successful claim to it,
quieting title to the quarter in McKenzie.
This matter was fully reviewed by the Court twice, on two separate
occasions, first in 1909 and then again over a year later at a rehearing in
1910, and this is what makes this otherwise rather simplistic and mundane
case worthy of attention. The Court normally gives very thorough and
complete consideration to each case the first time it comes before the Court,
so the Court rarely grants rehearings, and even when it does, the rehearing
only very rarely results in any meaningful change to the position of the
Court on any of the core issues involved in the matter at hand. This case
however, happened to come before the Court at a time when certain key
aspects of the process of judicial review of land rights conflicts were in a
state of transition, and there was some controversy between the various
Justices of the Court, as to how land rights cases should be adjudicated.
Historically, cases had been partitioned and classified as being either legal in
nature or equitable in nature, with land rights cases typically being treated as
equitable, making all of the well known doctrines of common law available
to the Court in resolving such disputes, yet under the historic system, certain
cases involving land rights could be deemed to be purely legal in nature,
making common law principles inapplicable to their resolution. With the
new century however, had come a growing judicial movement to do away
with such classification of cases, and achieve unification of all actions that
did not involve criminal acts under one umbrella, and this rising judicial
inclination to eliminate the old partition between the process of law and the
process of equity had taken root by this time, and was ready to be
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implemented, so at this point came the dawn of the modern era of unified
civil actions. When this case first came to the Court in 1909, it was
addressed by a senior Justice, who viewed this controversy as purely legal in
character, and as a result his opinion held that not only were the curative
statutes cited by the lower court inapplicable, more importantly, the
equitable doctrine of estoppel was also inapplicable, so his decision resulted
in a reversal of the lower court's position, mandating a new trial, which was
a result that was favorable to the Kennys. Two younger Justices were absent
from the Court at the time however, and McKenzie's legal team correctly
sensed that an opportunity existed to have this ruling of the Court against
McKenzie overturned, so they requested and obtained a rehearing of the
matter by the Court. Upon rehearing, the opinion of the Court was delivered
by one of the younger Justices, whose presence tipped the balance of the
Court in favor of McKenzie, and just as his legal team had hoped, the Court
took the exceedingly rare step of reversing it's own prior holding on the
same subject matter, under the strong leadership of a new generation of
Justices, holding a more progressive view of the manner in which land rights
cases and other such conflicts over private rights should be resolved. The
final opinion of the Court, issued upon the rehearing of this case in 1910,
clarified that in any action to quiet title or any action involving conflicting
land rights claims:
“Any facts constituting a defense under the rules of equity or at
law may be pleaded ... by any person against another claiming
an interest in real property adverse to him ... The statute of
limitations and estoppel by laches are quite distinct, the statute
being an arbitrary bar created by legislative enactment, while
estoppel arises from the conduct of the parties themselves ...
The distinction between actions at law and suits in equity, and
the forms of all such actions and suits heretofore existing are
abolished. And there shall be in this state, hereafter, but one
form of action for the enforcement or protection of private
rights ... denominated a civil action ... In the Hecht case, we
held that ... the action was a legal action, the defense by way of
equitable estoppel was not applicable, being available only in
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equity actions. In both conclusions we now believe we were in
error ... any facts constituting a defense under the rules of
equity or at law may be pleaded in a civil action ... Estoppels
are ... protection of rights, equitable and just, and they are just
as readily and truly recognized in courts of law as in courts of
equity ... estoppel may arise from laches covering a period of
time much shorter than that prescribed by statute ... laches or
estoppel ... may apply in any case to determine the rights of the
parties ... a party who knows his rights and fails to assert them
when he should ... may be estopped by his own laches ...
plaintiffs bring this action to recover possession of this land on
the assertion of naked legal title in themselves ... defendant ...
has proved every fact essential to a full estoppel ... of plaintiff's
bare legal title ... plaintiffs ... are presumed to have an equal
knowledge of the law ... they should be held estopped."
As can readily be seen, the key element in this case was simply the
passage of time, specifically the fact that not enough time had passed since
McKenzie had taken possession of the land at issue to enable him to benefit
from the statute of limitations, which left his rights to the quarter in
jeopardy, and opened the door to the claim of ongoing ownership that had
been set forth by the Kennys. Had the statute of limitations been met by
McKenzie's period of possession, that fact would have been conclusive, and
the claim made by the Kennys would have been legally barred by the statute,
in which case a purely legal resolution would have resulted in victory for
McKenzie by adverse possession, on purely legal grounds, with no
intervention of equity. Since McKenzie could not prevail on strictly legal
grounds however, he had found it necessary to seek the protection of the
equitable principles that comprise the common law, specifically laches and
estoppel in this instance, so the position of the Court on the question of
whether or not such principles of equity were applicable was pivotal to the
outcome, and this issue was the source of the controversy that existed
between the older and younger Justices of the Court, as representatives of
their different generations. Here at last, the incoming generation prevailed,
as the Court finally decided upon rehearing to uphold the lower court's
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resolution of the dispute, allowing McKenzie to triumph on the basis of
equity, marking a milestone in the history of land rights litigation in South
Dakota, from which the Court would never turn back. In the view of the
majority of the Court, which was dissented only by the Justice whose 1909
opinion was being reversed, the Kennys were guilty of laches, which
represents an unjustifiable delay in asserting one's rights, that causes
damage, injury or harm to another party. Laches was one of the most
powerful principles of equity for centuries, and was frequently exercised in
resolving land rights conflicts, until the arrival of modern statutes of
limitation effectively supplanted it, but even today it remains available to the
Court, although it is much less often employed. In this case, the unjustifiable
delay of the Kennys, in attempting to reclaim their long neglected rights to
the quarter in controversy, resulted in their estoppel, muting their ability to
assert their legal ownership of the land at issue, in the view of the Court,
although the full statutory period had not yet run, because only that view of
the events that had transpired resulted in a just and equitable outcome, given
that the Kennys had utterly failed to uphold their responsibilities as
mortgagors. Also quite notably, in so holding, the Court took the very
unusual step of expressly overruling it's own prior position, taken in the
1908 case of Burleigh v Hecht, here striking down the concept expressed in
that case that estoppel, and principles of equity in general, cannot be allowed
to have any impact or effect upon actions at law, being reserved for use only
in cases that are classified as equitable in nature. The Court had thus passed
an important judicial landmark, effectively merging all land rights actions
into the comprehensive civil format that has become the modern standard for
land rights litigation and adjudication, in which equitable concepts, such as
estoppel in it's many forms, can often be successfully applied to combat land
rights claims such as the one made here by the Kennys, that are based solely
upon technicalities.
The case of Farr v Semmler, which was decided by the Court in 1909,
after the Court's initial ruling in the Kenny case, but before the Court's
reversal of it's position regarding the applicability of equitable factors such
as estoppel upon rehearing the Kenny case, is worthy of note at this point. In
that case, the owner of a certain quarter section mortgaged it twice in 1888,
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and then absconded with the money, leading to the eventual foreclosure of
both mortgages. Kinsman acquired title to the quarter in 1897 from one of
the mortgage companies, unaware that a second mortgage relating to the
same property existed, and therefore occupied and improved the quarter as
an innocent land owner, before conveying it the following year to Semmler,
who also innocently resided upon it and erected further improvements upon
the land. In 1906, the existence of the other mortgage foreclosure came to
the attention of Farr, who then obtained a quitclaim deed to the same quarter
and filed an action claiming ownership of it, charging that his title by
foreclosure was superior to that of Semmler. Since Kinsman and Semmler
combined had not occupied the property for 10 years, Semmler was forced
to rely upon the equitable principles of laches and estoppel based upon
acquiescence to defend against the assault waged by Farr. Given the position
taken by the Court upon first hearing and deciding the Kenny case just a few
months earlier, Farr presumably expected the Court to follow that ruling and
declare Semmler's defenses invalid and inapplicable. To the contrary
however, the Court upheld a lower court decision in favor of Semmler, on
the basis that Farr's grantor was guilty of laches through acquiescence,
leaving Farr's title subject extinction through estoppel. This decision clearly
shows that strong forces were stressing the Justices of the Court at this time,
over the application of equitable principles to title issues, and that a decisive
majority of the Justices believed that all title issues should be decided on the
basis of equity, leading to the crucial reversal of the Court's initial opinion
on the Kenny case, upon rehearing, just a few months after this decision in
the Farr case. Interestingly, the Farr case also happens to mark the occasion
upon which the Court set forth it's own definition of the meaning and impact
of the term "acquiescence", as a distinct form of conduct triggering laches
and estoppel, highlighting that word which has been employed in a wide
variety of ways by courts nationwide in the adjudication of land rights, as
well as conflicts of many other kinds. The Court's definition of
acquiescence, which was destined to become affiliated with adverse
possession in South Dakota, as we shall subsequently observe, emphasized
the fact that inaction by a holder of any interest in land can result in very
adverse consequences for that party:
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“appellants were bound to know that some innocent purchaser
(Semmler) was likely to be injured by their silence ... they are
guilty of laches ... a party cannot with impunity seal his lips and
remain in idleness for years ... the term "conduct", when applied
to a person in it's relation to the modern doctrine of equitable
estoppel, embraces not only ideas conveyed by words, either
written or spoken, and things actually done, but it includes the
silence of such person and his omission to act as well ... He
who is silent when conscience requires him to speak shall be
debarred from speaking ... He who acquiesces in an error takes
away the right of objecting to it ... Acquiescence means to rest
apparently satisfied, without objection; a silent or passive assent
... appellant (Farr) ... impliedly assented and acquiesced in the
erroneous foreclosure ... permitting defendants to take open and
notorious possession of the premises ... he acquiesced and ...
should not now be heard."
WENTZEL v CLAUSSEN (1910)
Returning to the topic of PLSS boundaries, here we reach a case that
harkens back to the Arneson case of 1891, in terms of the elementary nature
of the boundary issue that creates the controversy between the litigants, as
one land owner again seeks to take advantage of a resurveyed section line to
extend his own property at the expense of his neighbor. The Court was well
prepared by this time, to address such a scenario, having already dealt on
several occasions with resurveys that had been improperly performed,
revealing how inadequate and inconsistent the education of land surveyors
was at this time, and showing how awful the consequences of poorly
executed resurveys would be for innocent land owners, were the Court not
ready to come to their rescue, by upholding their right of reliance upon the
original work of the GLO. In that regard, our attention is here drawn again to
the unfortunate saga of Van Antwerp, whose earlier work has been discussed
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previously herein, an apparently very prolific early retracement surveyor,
who stubbornly chose to cling to his own personal preferences when
performing his work, despite having the error of his ways very clearly
pointed out to him. Since Van Antwerp had never experienced any personal
liability as a result of any of his survey work, and he was apparently
convinced that his own knowledge of land surveying was superior to that of
the Court, he evidently decided to go on surveying in the manner that he saw
as appropriate, even after being informed by the Court that his methods and
procedures were unauthorized and stood in contradiction to law, which not
surprisingly made his name one with which the Court was destined to
become quite familiar. Another relevant PLSS boundary case from this
period, involving a surveyor identified only as the Minnehaha county
surveyor, which may or may not have been Van Antwerp, depending upon
whether or not he was still in that position at this time, is the 1908 case of
Phillips v Hink. In that case, Phillips owned the southwest quarter of a
certain Section 3, while Hink owned the southeast quarter of that section,
and a resurvey indicated that the crop line between them, the origin of which
is unknown, running northward from the south quarter corner, which was
evidently known and accepted by all parties, veered off to the west, by an
unspecified amount, as it proceeded northward. Phillips therefore asserted
that his title extended east past the crop line, to the quarter section line that
had been marked during the resurvey, but the trial court dismissed his
argument, holding that the resurvey was incorrectly executed and could not
control the location of either the center sixteenth corner or the quarter
section line. The Court upheld the lower court ruling, because in order to set
the center sixteenth, the surveyor had simply run a line between the east and
west quarter corners of the section and adopted the midpoint of that line as
the center of the section, which the Court found to be unacceptable, leading
it to allow the crop line to stand as the quarter section line, in the absence of
any superior evidence of that line's original location. In so ruling, the Court
once again showed no inclination to honor the work of the county surveyor
with the presumption of correctness that is typically applied to surveys
which stand uncontradicted by any competing survey, having sadly
concluded, primarily from it's previous experience dealing with the work of
Van Antwerp, that even the work of a county surveyor could not be trusted.
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1867 - The original subdivision of an unspecified township in Douglas
County was performed by the GLO, and the original GLO plat of the
township was subsequently approved, at an unspecified date.
1880 - The first settlers began to arrive in the township that had been
originally surveyed 13 years earlier, and they were guided to their
land by a locator named Manback. There is no indication that
Manback was a surveyor, nor any indication of how experienced he
was as a locator, but he apparently understood enough about GLO
surveys to recognize stakes, mounds and pits that had been set by
GLO surveyors. Manback was evidently able to locate only a small
number of definite original section corner and quarter corner
monuments in the subject area however, and in the apparent absence
of any surveyor, he took it upon himself to restore an unspecified
number of recognizable but partially obliterated monument locations,
and also to erect additional monuments, in places where he found
none. Quite naturally, this original group of settlers, who came to
claim land in the township at this time, apparently all adopted the
corners that were shown to them by Manback, without questioning
their origin or validity.
1882 - Another group of setters arrived, apparently occupying all the
land that remained available in this township, and like the members of
the earlier group, they also willingly honored all the monuments that
they found or were shown, although they noted that some of the
monuments appeared to be older than others, some of the mounds and
pits being completely overgrown with grass while others were not.
1883 to 1909 - During this period, the township presumably
developed as would be expected, and there is no indication that any
boundary disputes or other issues relating to the original
monumentation of the township arose. By the end of this period,
Wentzel had become the owner of the south half of Section 7, and
Claussen had become the owner of the north half of Section 18.
Whether either of them, or any relatives of either of them, had been
among the original entrymen or not is unknown, as are the dates at
which the two men acquired their respective lands. At an unspecified
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date, presumably toward the end of this period, a resurvey of the
entire township was undertaken. Who suggested the need for such a
comprehensive resurvey of the township is unknown, but it was
evidently commissioned by the township, and it was completed by a
surveyor named Van Antwerp. The section line location resulting
from this resurvey, running between Sections 7 & 18, was an
unspecified distance south of the previously established location of
that line, and it was not parallel with the existing line either, leaving a
total of about 20 acres that had always been considered part of Section
18 on the north side of the new line. This result was perfectly
satisfactory to Wentzel, but was entirely unsatisfactory to Claussen, so
Claussen declined to concede that the 20 acres in question was part of
Section 7, requiring Wentzel to file an action seeking to quiet his title
up to the boundary location marked during the resurvey, in order to
take possession of that area.
Wentzel argued that all of the original GLO corner monuments in the
area were lost, and the resurvey had properly restored all of the original
corners to their originally intended locations, by means of precise modern
measurements, proving that the land in controversy had actually always been
part of Section 7, since the monuments that had been relied upon by the
original settlers had all been proven to be incorrect and unreliable by the
resurvey, so Claussen had never had any legitimate claim to the area in
question. Claussen argued that the original corners of his land were not lost,
although some of them may have become obliterated, and may have been
perpetuated by second generation monuments or improvements, such as
fences and trees that had been put in place by the original settlers, and the
resurvey had wrongly rejected all such physical evidence of the original
GLO boundary locations, so the strip in contention was in fact part of
Section 18, and therefore belonged to him. The trial court held that the
resurvey was acceptable, and it therefore controlled all of the relevant
boundaries, so the land in dispute was part of Wentzel's section, quieting
title in him, south to the resurveyed line location.
It may be worthy of note at the outset, for those who are acutely
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cognizant of the distinction between title and boundary issues, that this case
was properly addressed and dealt with by the Court as a boundary conflict,
despite the fact that it had been improperly characterized as a title action,
without any comment from the Court on the obvious inaccuracy of the stated
form of the action. This further serves to illustrate the same concept
discussed in the Kenny case, just previously reviewed, which is that the
Court views such distinctions as mere technicalities, that are not to be
allowed to control, focusing instead solely upon the actual subject matter of
each case, and insuring that proper treatment is given to all relevant issues,
representing a typical manifestation of the elementary principle of substance
over form. The most distinctive aspect of this case, is the fact that it marks
the first occasion upon which the Court formally recognized the terms "lost"
and "obliterated" in their modern context, correctly interpreting and using
both of those terms as they uniquely apply to boundary resolution, and also
correctly emphasizing their significance in the performance of retracement
surveys. The Court had used both of these terms in previous cases, but had
never before acknowledged their specifically opposing meanings, as those
meanings had been defined by the GLO, and that important distinction
would prove to be absolutely vital to the outcome of this conflict. As we
have observed in our review of earlier cases involving PLSS monuments and
boundaries, the Court had already become quite familiar with the work of
the surveyor who had executed the resurvey at issue here, and had sternly
criticized his completely independent approach to resurveys, so it may be
surprising to some to learn that he was apparently still performing his
surveys in the same manner for which he had more than once been chastened
by the Court. Surveyors are often described as being stubborn, and
sometimes rightly so, but there have probably been very few who have clung
to their mistaken ways as ardently as did the surveyor who once again here
earns another serious remonstrance, at the hands of the Court, for his
disrespectful treatment of valid boundary evidence. Once again in this
scenario, presenting a well developed township, replete with substantial
improvements of significant value to the owners of land in the subject area,
virtually identical to the circumstances presented in the earlier PLSS cases
that we have reviewed, the Court both recognized and emphasized the
importance of respecting all physical boundary evidence, to protect the land
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rights of all those whose established boundaries were truly founded upon
original monumentation. Noting that a resurvey such as the one done here
adversely impacts every resident of the township in question, and continuing
to place the right of all of the land owners to rely on their existing
boundaries, as having presumably been established in reliance on original
monuments, or faithful perpetuations thereof, the Court expressed it's
chagrin concerning the resurvey at issue as follows:
“According to the testimony of Van Antwerp, he was unable to
find any mounds inside of the township lines that he considered
government mounds ... He concluded that such mounds were
lost, and he then proceeded ... by running direct lines from
section corners on the south to corresponding corners on the
north side of the township, and by running lines from the
section corners on the east side of the township to
corresponding corners on the west side, the intersections of the
lines thus marking the section corners ... the sole question
before us is whether ... the government corners were lost ... the
resurvey could only be had to locate such as were lost ... It was
admitted by Van Antwerp that he found certain mounds and
pits, but he claimed they were so constructed that they did not
comply with the government rules ... Certain of the mounds and
pits found on the township line, and by Van Antwerp claimed
to be original ... were apparently in a condition the same as, or
similar to, that of some of the interior mounds and pits rejected
by him ... Van Antwerp in locating the township line mounds
and pits seemed to put considerable weight upon ... fences that
had been built in accord with such location ... These were
matters which ... it was his duty to take into consideration ... but
he entirely rejected similar evidence in relation to mounds
within the township limits ... many of the original government
mounds and pits located within the township lines were still
visible ... others had become obliterated, yet ... by calls, fences,
highways, groves, etc, few, if any, of such mounds had been
lost ... there must be most satisfactory proof that the
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government corners have become absolutely lost, as
distinguished from obliterated, before it will be allowed ... to
institute a new survey and locate corners ... at points clearly not
where the original corners were located."
Ironically, while harshly condemning the retracement surveyor here
for his failure to accept valid evidence of obliterated section and quarter
corners, that had been legitimately perpetuated by the existence of physical
improvements, the Court offered no critique of his patently incorrect method
of running the latitudinal lines within the township, in complete disregard
for the footsteps of the original GLO surveyor. Nonetheless, this view taken
toward the evidence by the Court serves to clearly illustrate the fact that the
Court, being rightly focused on achieving justice for the parties, generally
disregards survey methods and procedures as technicalities, and renders it's
decisions on the basis of the justice, or the absence of justice in this instance,
found in the actual results of the survey. While the Court was most disturbed
by the obvious failure of this surveyor to honor any of the abundant physical
boundary evidence existing in this township, pointing out that it was his
fundamental duty to seek out and utilize all such evidence, the Court was
also disconcerted by the inconsistency that was evident in his decision
making, concluding that he was guilty of selective acceptance and rejection
of monuments. This surveyor apparently applied his own personal standard
to the monuments that he encountered, based arbitrarily upon their location,
evidently treating all monuments within the boundaries of the township he
was assigned to survey as unreliable, unless their dimensions perfectly
matched the field note record, and their location precisely matched his own
measured location, which of course was destined never to be the case. It was
this rebelliously independent mindset, indicating a higher regard for
scientifically precise survey results than for existing land rights, that made
the work of this particular surveyor entirely unpalatable to the Court, since
his attitude represented a distortion of the intended function of a retracement
surveyor. Having concluded that the survey could not stand as controlling,
the Court reversed the lower court decision and remanded the case for a new
trial, which may or may not have ever taken place, since the Court's ruling
had made it quite clear to Wentzel that his position was fatally flawed, so he
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could not hope to prevail by relying upon the resurvey. Its never enjoyable
to see a fellow surveyor reprimanded, but important lessons can and should
be learned from such experiences, and this case holds a very strong and
direct message for surveyors, pertaining to their decisions relating to
acceptance or rejection of physical boundary evidence. The retracement
surveyor here never properly understood his own role in our society, acting
instead, apparently willfully, as if he were an original surveyor himself,
which it was obviously outside his authority to do, and he was also guilty of
taking an unrealistically scientific perspective upon the existing evidence,
demanding that it meet his personal standard of perfection or be arbitrarily
discarded, leading to potentially widespread damage to established land
rights. Yet despite having obtained wise and powerful guidance directly
from the Court, he evidently remained determined to play by his own set of
rules, as we shall see when we encounter his further exploits in cases yet to
come. Nevertheless, the Court had made very good use of the opportunity
presented by this controversy to move the ball forward, with respect to the
proper treatment of boundary evidence, establishing that monuments must
be conclusively lost before being reset based on measurements alone, and
that the burden of proof is always on the party asserting that a given
monument is truly lost, and that monuments are not lost as long as any
physical evidence of their original location, dating from the time of original
settlement, yet exists.
BLISS v WATERBURY (1911)
Here we examine a case that stands as a fine example of the immense
power of the principle of physical notice, in the context of it's impact upon
the rights of a grantee and his successor, emphasizing the fundamental
burden of inquiry notice that the Court typically places upon grantees,
balancing the substantial responsibilities that typically rest upon grantors.
This case has often been cited as a poignant demonstration of the
relationship between notice of the existence of land rights provided through
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physical means and such notice provided by means of documentation, and it
clearly indicates the importance of understanding that reliance upon
documents of record alone is inherently perilous. Several other decisions of
the Court from this period, that clarified or solidified relevant aspects of land
rights law, are worthy of being briefly noted here. In the 1908 case of
Fullerton Lumber v Tinker, a hotel had been erected on a certain tract by
Tinker, and he had mortgaged the tract to Fullerton, and Fullerton had
recorded the mortgage, but it did not appear in the chain of title for the
property, because Tinker was not the legal owner of the tract at that time, he
held only an equitable interest in the property. A subsequent grantee later
acquired the hotel property, without knowledge of the mortgage, and he
maintained that the mortgage was null and void, but the Court ruled that the
subsequent grantee had the opportunity to learn of the existence of the
mortgage, and his ignorance of it's existence was the result of his own failure
to carry his legal burden of inquiry notice as a grantee, so he had acquired
the hotel subject to the existing mortgage. In 1910, in Ford v Ford, two
brothers, Hugh and Michael, had owned a ranch, but in 1886 Hugh had
conveyed his interest in the ranch to Michael, describing the property only as
"situated on the Belle Fourche River, Butte County, D. T., and commonly
known as the headquarters of the Ford Brothers Cattle Co.". After both of
the brothers had died, the daughter of Hugh asserted a legal interest in the
property, against the widow of Michael, claiming that the legal description
used in 1886 was insufficient, so the land in question had never been
conveyed to Michael, but the Court held that the description at issue was
legally sufficient, denying that Hugh's daughter held any rights to the land.
Also pertaining to description issues, in the 1910 case of Stenson v Elfmann,
the litigants had entered a conveyance agreement, under which Elfmann was
to convey a certain tract to Stenson "except, however, 2 acres in the
northeast corner", and Stenson then had the tract platted, showing the 2 acre
exception. Elfmann subsequently attempted to back out of the deal however,
claiming among other things that the agreement was invalid because the 2
acres had not been legally described in the agreement, but the Court rejected
Elfmann's assertion, deciding that the plat of the property, which had been
subsequently prepared for Stenson, had adequately defined the 2 acre
exception. Also in 1910, in Smith v Cleaver, a judgment had been obtained
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by Cleaver, awarding him a tract that had been acquired by Smith, as
payment for a debt that Smith owed to Cleaver, but Smith's wife held an
unrecorded deed showing that Smith had conveyed the tract in question to
her in 1901, thus indicating that she had been the legal owner of the property
since that time, thereby nullifying the award to Cleaver. Cleaver charged that
the deed was fraudulent, but the Court upheld it as valid, stating that the
mere failure to record a deed cannot deprive a grantee of land ownership,
and the burden of proving that a deed was fraudulent always falls upon the
party making the accusation of fraud.
Prior to 1887 - The father of Waterbury was evidently an early settler,
who became the patentee of an unspecified amount of land in an
unknown location in Jerauld County. The Waterbury family evidently
occupied and used their land in the typical manner, for an unspecified
period of time after obtaining ownership of it, but Waterbury's father
apparently became seriously indebted during this period of time.
1887 - Waterbury's age at this time is unknown, but he was apparently
old enough to engage in farming operations to some extent, because
his father conveyed an unspecified portion of his patented land to
Waterbury at this time, and Waterbury took control over the land
conveyed to him. Whether the land conveyed from the father to the
son was physically partitioned from any land that may have been
retained by the father is unknown, but Waterbury evidently took sole
possession of the land conveyed to him and made use of it in a manner
that was independent of the use made by his father of whatever
portion of the patented land had not been conveyed from the father to
the son. Waterbury was given a deed to his land, which was signed by
both his father and his mother, but he failed to record it, and he
subsequently lost it.
1890 - Ramsey was evidently one of the creditors of Waterbury's
father. Ramsey filed an action against Waterbury's father and the
resulting judgment awarded all of the land owned by Waterbury's
father, according to the land ownership records as they stood at this
time, to Ramsey, due to the apparent inability of Waterbury's father to
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pay his debt to Ramsey. A sheriff's deed was issued to Ramsey,
pursuant to this judgment, and Ramsey thereby became the owner of
record of all the land that had been patented to Waterbury's father.
Waterbury had no involvement in this legal action, and he was not
contacted concerning any rights he may have to any portion of the
land at issue. Whether or not Waterbury's father actually participated
in this legal action himself is unknown, knowing that he was destined
to lose, and having no defense to offer, its quite possible that he
simply failed to appear, thereby allowing judgment to be issued by
default against him. This judgment was never appealed, and therefore
became legally binding upon those parties who had been implicated
by name in the action, so any rights held by Waterbury's father to any
of the land that had been patented to him were legally terminated at
this time.
1891 to 1900 - For unknown reasons, Ramsey apparently never
attempted to obtain actual possession or control of any of the
Waterbury land, or to interfere with the family's ongoing use of it in
any manner, so Waterbury's son went on using all of the land that had
been conveyed to him, and his rights to it were never questioned or
challenged by anyone during this period. Presumably Ramsey was an
investor who did not live in Jerauld County and never visited the area.
Ramsey was evidently comfortable in the knowledge that the
Waterbury property had been judicially awarded to him and deeded to
him, so he was unconcerned with any use that Waterbury or anyone
else might be making of the land, because Ramsey believed that he
could sell that property at any time, and that was what he planned to
do. Whether or not Waterbury actually lived on the land that had been
granted to him by his father throughout this entire period is unknown,
but he evidently cultivated it, and harvested crops from it, and he used
and maintained the farm buildings that occupied the land on a regular
basis, if not a daily basis.
1901 - Waterbury's father apparently decided to make an effort to
regain his lost land, so he filed a quiet title action against Ramsey, but
he was unsuccessful, and title to all of the land that been patented to
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him was quieted in Ramsey. Waterbury once again took no part in this
legal action however, he simply continued to make full use of all of
the land that had been conveyed to him.
1902 to 1910 - At an unspecified time during this period, Ramsey
decided to sell all of the Waterbury land to Bliss, and Bliss visited the
property, where he found Waterbury working on the land that had
been conveyed to him by his father in 1887. Bliss had apparently
never met any of the Waterburys before, so he directly asked
Waterbury if he held any ownership interest in the land, and
presumably because Waterbury was ignorant as to whether or not he
could successfully claim to be the owner of his land under the law,
after having lost his deed, he told Bliss that he was unsure of whether
or not he had any ownership rights to the land. Bliss made no further
inquiry into the possible rights of Waterbury, and proceeded to
acquire from Ramsey all of the land that had originally been patented
to Waterbury's father. When Bliss subsequently attempted to assert or
take possession of the land in question, Waterbury evidently declined
to vacate the premises, or to relinquish control over the land, so Bliss
filed an action against Waterbury, seeking to quiet title to all of the
Waterbury land in himself, and to have Waterbury compelled to turn
control of all the Waterbury property over to him.
Bliss argued that he had legitimately acquired all of the land at issue
from Ramsey, who was the owner of record, supported by two previous
court decrees, so the land belonged to him. Bliss did not assert that
Waterbury had never acquired any land from his father, or that the alleged
1887 deed had never existed, but he argued that since Waterbury had failed
to record his deed and had lost it, Waterbury could show no documentation
supporting his claim of ownership, and Waterbury therefore had no valid
basis upon which to challenge the properly documented ownership of the
land by Bliss. In addition, Bliss maintained that since Waterbury had
numerous opportunities to make his alleged ownership of the land that he
was claiming known, and Waterbury had failed to ever step forward to
publicly announce that he, and not his father, owned the land in controversy,
Waterbury should be estopped from making any claim to any of the land that
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had once been owned by his father. Waterbury argued that the land he was
claiming had been legitimately conveyed to him by his father in 1887, and
he had been the owner of it since that time, despite the fact that he had never
recorded his deed and had lost it, so the legal actions against his father had
no effect on his ownership of the land that had been deeded to him.
Waterbury admitted that Bliss had asked him who owned the land, and that
he had said that he was uncertain about his own rights to the land, but he
maintained that his open use of the land, ever since he had acquired it, had
made it plain and obvious to all the world that he was functioning as the
owner of the land, and that he had never forsaken his right to claim
ownership of it, so Bliss was mistaken in concluding that Waterbury could
not have any valid claim to the land that Waterbury had been using. The
matter was assigned to a referee, who found that Bliss had inquired with
Waterbury about the ownership of the land in dispute, and Waterbury had
failed to fully inform Bliss of Waterbury's claim to it, so Waterbury should
be estopped from making any subsequent claim to the land, and on that
basis, the trial court quieted title to all of the Waterbury land in Bliss, as
requested by him, denying that Waterbury could have any valid claim to any
of his father's former land.
Since Waterbury had evidently occupied and used all of the land in
controversy for many years, apparently without any interruption by anyone,
it may appear at first glance that adverse possession could be a factor
potentially in play here, but that was definitely not the case, and this scenario
very well illustrates the fact that not all possession which appears to be
adverse truly is adverse. Waterbury had no need to claim adverse possession,
since he had acquired the property in question by means of a valid deed, and
even if he had attempted to claim adverse possession, he could not have
successfully done so, since there was no evidence that Ramsey had ever
ordered any members of the Waterbury family off any of their land after
Ramsey's title to all of it had been legally quieted. Ramsey had no reason to
order the family to vacate the property, and he was free to let them go on
using it, accepting their presence as harmless tenants from his perspective,
so their use of the land could not be characterized as being adverse, unless
they had remained upon the land even after being ordered to vacate the
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premises. The use of the land at issue by Waterbury was never adverse to
Ramsey, or to anyone else, it was based on a legitimate conveyance, which
of course meant that Waterbury's use of the land had resulted from an
agreement, rather than any adverse act on his part, so Waterbury could not
have prevailed on an adverse possession claim, but the same principle of
notice that lies at the core of adverse possession can apply to many other
situations as well, and it would prove to be decisive here, in a different
context. For those reasons, this conflict was properly treated by the Court as
a plain contest between two deeds, both purporting to convey the same land,
one of which had been lost without ever being recorded, and the other being
the subsequent product of a court decree, thus the first question for the Court
was whether or not the deed to Waterbury had ever existed. Since the
testimony by the Waterburys, that the 1887 deed had been legitimately
executed, and had described the land conveyed consistent with the area used
by Waterbury, was undisputed by Bliss, the Court adopted the presumption
that the deed did once exist, and had been properly delivered, constituting a
valid conveyance, raising the issue of the consequences of Waterbury's
careless treatment of his deed. Once actually delivered, the Court
recognized, the loss or destruction of a deed for any reason can have no legal
effect, since the conveyance is complete at that moment, and thereafter the
grantor no longer holds any interest in the land conveyed, so the dispositive
issue was simply the effect of Waterbury's failure to provide public notice of
his acquisition by recording his deed. Since the law statutorily
acknowledged that an unrecorded deed is valid against any parties having
notice of it's existence, and recordation does not create any rights, it merely
provides one form of notice of existing rights, the Court realized that
Waterbury's failure to record his deed could not terminate or prevent his
ownership of the land conveyed to him, unless no other form of adequate
notice of his ownership of his land existed. With those legal parameters in
mind, the Court concluded that Waterbury's actual and open use of the land
in dispute was sufficient to effectively overcome his failure to record any
documentation pertaining to it, stating that:
“Defendant's claim of ownership rests on an unrecorded deed
from the patentee ... Whenever a person dealing as purchaser or
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incumbrancer with respect to a parcel of land is informed or
knows, or is in a condition which prevents him from denying
that he knows, that the premises are in the possession of a
person, other than the one with whom he is dealing as owner,
he is thereby put upon an inquiry, and is charged with
constructive notice of all the facts concerning the occupant's
right, title and interest, which he might have ascertained by
means of a due inquiry ... possession is of itself sufficient
notice, whether it is actually known to the third person or not ...
The contention that the defendant should not assert title because
he failed to do so in a conversation ... is not tenable ... the
plaintiff had ... ample notice that the defendant intended to
ascertain what his rights were, and to assert whatever rights he
possessed. The contention that defendant is estopped from
asserting ownership because he failed to do so during the
litigation ... is also untenable ... The fact that defendant ...
remained silent ... is not sufficient to establish an estoppel.
Defendant's possession was notice to the world that he claimed
some rights in the property ... the defendant is not estopped
from asserting his unrecorded title as against either Ramsey or
the plaintiff."
Declining to place any significance or emphasis upon the fact that
Waterbury had acquired his land from a close family member, whose affairs
he presumably had complete personal knowledge of, the Court decided that
although the sheriff's deed to Ramsey was undoubtedly good against
Waterbury's father, it could have no impact on the rights of Waterbury, since
he had not been made a party to any of the legal actions concerning the
Waterbury property, prior to the current legal action. Ramsey had made the
crucial mistake of failing to name Waterbury as a defendant in his 1890 legal
action, apparently assuming that Waterbury was simply using some of his
father's land as a family member, and held no independent rights of his own
to it, if he knew anything about the use of the land at all, but in the view of
the Court, Waterbury's rights were in fact separate and distinct from those of
his father, so no title held by Waterbury had ever been acquired by Ramsey,
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or quieted in him. The inquiry made by Bliss, when he asked Waterbury
about the ownership of the land in question, the Court observed, was
inconclusive, because Waterbury was unaware of the legal status of the land
that he had been using, and most critically, Waterbury had never denied that
he owned it, so Bliss was not entitled to make the assumption that
Waterbury had no rights to it, and therefore Bliss held no better position than
did Ramsey, his grantor. The Court's resolution of this controversy
demonstrates the limitations of estoppel, the party being estopped must have
either acted or spoken in some misleading way, or neglected to act or speak
when appropriate, or in this context, if confronted about the true status of his
land rights that party must have denied that he had any such rights, since a
mere expression of uncertainty concerning the legal status of one's land
rights is not equivalent to an outright denial of those rights. The position
taken on this matter by the Court also clearly displays the great power of
physical notice, which in this instance was sufficient to negate even the
suggestion of estoppel, and the principle of physical notice applies even to
an absentee owner such as Ramsey, who never personally tends to the land
that he has acquired, because the only burden upon the occupant of such
land is to make open use of it, thereby providing anyone with an interest in it
the opportunity to take notice of the occupant's presence. Had Bliss accused
the Waterburys of fabricating the 1887 deed, or fraudulently executing it to
prevent Ramsey from securing all of the Waterbury land, and presented
evidence of that, the outcome very likely would have been different, since
the good faith of the Waterbury's would have been thereby called into
question, if not destroyed, but since no such allegations were raised, the
Court found the balance of good faith to lie with Waterbury, as manifested
by his long and productive use of the land in question. Therefore, the Court
remanded the case to the trial court for a new trial, as had been requested by
Waterbury, to be conducted in accord with the principle that notice, resulting
from physical possession or use of land is at least equivalent to, if not
superior to, notice provided by documentation of record, as evidence of land
ownership, and mindful of the concept that a buyer of land is not entitled to
ignore or dismiss the occupation or use of any portion of that land by any
party other than his grantor.
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Two additional cases from this period also serve to illustrate the
manner in which the Court views and enforces the legal obligations of
grantees, with respect to the essential concept of notice. In the 1912 case of
Huffman v Cooley, a quarter section of cropland that had been leased by it's
owner to Huffman in the spring of 1908, for a 3 year period, was acquired
from that same owner by Cooley in the fall of that year, and Cooley then
declined to honor the right of Huffman to farm the quarter in 1909. Huffman
therefore filed an action against Cooley, claiming that his lease was fully
legal and entirely valid, and although it had not been recorded, Cooley had
adequate notice of it's existence, from the existing conditions upon the land
at issue, so Cooley had no right to ignore the existence of the lease. The
Court upheld a lower court ruling in Huffman's favor, on the basis that
Cooley had been put on notice of the existence of the lease by the fact that a
crop was growing on the land at the time Cooley acquired the quarter, and
Cooley had neglected to fulfill his burden of inquiry, because he had failed
to ascertain who had planted the crop. In so ruling, the Court reiterated that
land rights which are physically visible and apparent to all the world are
equivalent in legal force and effect as notice to recorded land rights, pointing
out that "failure to make such inquiry is regarded as an intentional avoidance
of the truth, which ... deprives the subsequent party of the character of a
bona fide purchaser", again emphasizing that good faith is vital to the
success of any land rights claim. In addition, how much of the land in the
quarter had actually been cultivated by Huffman was of no significance, the
Court indicated, because use of any portion of the quarter by Huffman was
sufficient to place Cooley on inquiry as to Huffman's rights, making it clear
that the Court is prepared to hold grantees to a heavy burden of diligent
inquiry. In Johnson v Olberg, a 1913 case, Johnson had entered a contract
for deed with Olberg, to acquire a certain quarter section that was owned by
Olberg, and Johnson had then occupied the quarter and put it to normal use,
presumably as cropland. Olberg had subsequently mortgaged the quarter
however, and he had executed a warranty deed to the mortgage company,
covering the quarter in question, as a result of which Johnson filed an action
seeking to rescind his contract with Olberg, on the basis that Olberg was no
longer the sole owner of the quarter. The Court upheld a lower court
decision dismissing Johnson's claim that he had the right to rescind his
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contract with Olberg due to the existence of the warranty deed, explaining
that the deed in question could not possibly represent any valid challenge or
threat to Johnson's rights to the quarter at issue, because Johnson's presence
on the land that was described in the deed had placed the mortgage company
on notice of his rights to that land, making it legally impossible for the deed
to convey outright ownership of that quarter. The only purpose such a deed
could serve, the Court held, was to pass whatever rights Olberg still had to
the quarter, subject to his contract with Johnson, to the mortgage company,
emphasizing that even under a warranty deed, a subsequent grantee can
acquire nothing more than the grantor's remaining rights to the subject
property, and no subsequent grantee can ever acquire land in derogation of
the rights of a legitimate occupant, such as Johnson.
HOEKMAN v IOWA CIVIL TOWNSHIP (1911)
Continuing our examination of the decisions of the Court pertaining to
PLSS boundaries, and the evaluation of GLO survey evidence in particular,
as the origin of those boundaries, we come here to a case that is very similar
to some of those already reviewed, but differs in that it does not represent a
situation in which original boundary evidence was overlooked, instead it
presents a scenario in which a deliberate and intentional effort was made to
resubdivide a township. Like the Wentzel case, decided by the Court just the
previous year and also reviewed herein, the resurvey at the center of this
controversy took place in Douglas County, but it should be noted that the
resurvey contested here was done in 1909, prior to the Court's ruling in the
Wentzel case, so the parties involved in this conflict, most notably the
surveyor, did not have the benefit of knowing the outcome of the Wentzel
case, at the time when the plan to resurvey this township was developed. As
will be readily apparent, the concept motivating the Court in it's analysis of
the evidence in this case is once again the right of complete reliance upon
GLO survey work that was bestowed by federal law upon the original
settlers, which is distinct from rights based upon plain possession of land,
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since the right to rely upon the work of the GLO represents federal policy,
that was intended and devised to support the right of all members of any
community to securely invest in the development of their land. Interestingly,
here we look on as the Court applauds the work of an early county surveyor,
who respected all of the original survey evidence that he found, even while
reprimanding a subsequent surveyor for failing to honor and perpetuate the
work of his predecessor, somewhat ironically perhaps, since by this time the
Court itself had already contributed to the notion that the work of county
surveyors was not to be treated as controlling, having issued several rulings
effectively striking down their work, as we have observed. Also on the topic
of original GLO evidence, Township of Blooming Valley v Bronson, a case
that came to the Court in 1912, is also notable, since it involved an unusual
situation in which sixteenth corners had been set by the GLO during the
original survey of the township, which was verified by the GLO field notes,
although whether or not the sixteenth corners were shown on the GLO plat
of the township is unknown. Bronson owned the east half of a certain
section, and he testified that he had once seen the east quarter corner, which
was missing, and it had been several feet east of the line between the
sixteenth corners to the north and south of it. In this instance, the Court
agreed with the township that the quarter corner was lost, and should be
restored on the line between the existing original sixteenth corner
monuments, acknowledging that those monuments had all the controlling
force of any other original GLO monument. In so holding, the Court decided
that the evidence merited the conclusion that the quarter corner was
genuinely lost, because the two existing sixteenth corner monuments both
fell within inches of being on a straight line between the original section
corners to the north and south, which were known original monuments,
justifying the rejection of Bronson's testimony, on the basis that there was no
reasonable explanation for his suggestion that the quarter corner had
originally been several feet off such a well defined original line.
1868 - A township, which would go on to become Iowa Township in
Douglas County, was subdivided into sections by the GLO, and the
plat of the township was subsequently approved and published by the
GLO.
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1869 to 1885 - During this period, Iowa Township was populated by
settlers. By the end of this period, all of the land in the township had
been patented into private ownership, and many section line roads had
been built and put into regular use by the public, apparently without
any serious questions or disputes arising as to the validity of the
location of any of the section lines.
1886 to 1890 - Huston performed resurveys within this township,
evidently accepting all of the physical evidence relating to section and
quarter corners that he discovered, as being either original
monuments, or representing acceptable perpetuations of original
monument locations, thus his work did not operate to disrupt any of
the existing boundaries that had been adopted by the various settlers,
based on the evidence of the original GLO survey, which they had
been able to locate upon their arrival in the area.
1891 to 1908 - The township presumably developed in the typical
manner during this period, without the occurrence of any significant
boundary controversies.
1909 - For unknown reasons, the township supervisors determined
that a new resurvey of the entire township was needed at this time,
and they hired Bruce to do that job for them. What exact instructions
the supervisors may have given to Bruce, concerning either their
expectations pertaining to the resurvey, or the method by which they
wanted it conducted, are unknown, but Bruce proceeded to
remonument the entire township, solely on the basis of measurements
made by him, and his monuments did not correspond with any
established boundary or road locations. The magnitude of the
variation of this resurvey from the existing section corner and section
line locations is unknown, but it was enough to create concern that
many buildings had been built upon the wrong lands, and that none of
the section line roads were in their proper location. Hoekman and a
substantial number of other owners of land situated within the
township believed that the resurvey had been improperly executed, so
they filed an action against the township, seeking to prevent the
township officials from taking any action based upon the resurvey that
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had been completed by Bruce, and to have the resurvey judicially
nullified.
Hoekman and his fellow citizens of the township argued that the
resurvey failed to follow in the footsteps of the original GLO survey of the
township, and that the existing improvements on the ground, such as the
section line roads, represented the strongest and best evidence of the true
original locations of the GLO corners and lines, having effectively preserved
those original locations, therefore the 1909 resurvey was of no value and
could not control. The officials representing Iowa Township, who had
ordered the resurvey, simply argued that the resurvey had been properly
authorized, so the township residents had no right to complain about it, and
they should be judicially required to live with the results of it, and adjust
their roads, fences and buildings to conform to the corners and lines of the
resurvey. The trial court agreed with the land owners, directing the township
supervisors to disregard the resurvey that they had ordered, and to continue
to honor all of the existing section line road locations in the township as
permanent and binding evidence of the boundaries originally established by
the GLO.
Yet again here, the Court was called upon to reiterate the already very
well established rule that resurveys must honor all evidence of an original
survey, and must likewise honor all land rights that were acquired pursuant
to an original survey. Quite ironically, the resurvey at issue in this case had
taken place during the very same year in which a new federal statute
authorizing GLO resurveys had been enacted, expressly stating that "no such
resurvey or retracement shall be so executed as to impair the bona fide rights
or claims of any claimant, entryman, or owner of lands", which merely
represented an official recognition of the common law principle
commanding respect for all rights acquired in good faith, that had been in
effect for centuries. Bona fide rights, in the context of the resurvey statute,
simply represent all land rights held by any party who has acted in good
faith, by attempting to follow the spirit of the law, which envisions that
settlers will rely upon the products put in place by the government for their
use, in the course of performing the original surveys, and those items that the
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typical settler is expected to rely upon primarily are the GLO township plat
and the monuments actually set on the ground during the original survey.
Though the need for both dependent and independent resurveys to be done
in certain situations had been officially addressed by this time, and the need
to protect all existing land rights during all such resurveys had been properly
acknowledged at the federal level, many local officials and surveyors had
not yet gotten this vital message. The fundamental issue at the heart of this
matter, which constituted the real source of the controversy, the Court
realized, was the ignorance of the township supervisors and the retracement
surveyor, regarding their lack of authority to disturb any existing conditions
that had resulted from legitimate reliance by the settlers upon the original
evidence of the GLO survey of their township. The retracement surveyor in
this instance, the Court observed, had made an equal distribution of acreage
his objective, utterly failing to realize that no such option was available to
him, since he had no authority to decline to respect the existing boundary
evidence, which had been established through the well justified reliance of
all of the land owners in the township on their original corner locations, as
either they or their predecessors had found them. The attitude manifested by
the township officials toward the existing land rights of the township
residents was equally replete with ignorance, the Court noted, yet it was not
untypical of the kind of abuses that can often take place at the local
government level, due to the fact that such local officers are sometimes
poorly educated, or simply have little concern for the law. The response of
the Court suggests that the Court recognized that the township officials may
very well have had a personal interest in some of the boundaries at issue,
presumably those local officers believed that either they or their friends had
been shorted some amount of land and they had ordered the resurvey in an
attempt to use their official positions to correct that situation, but the Court
was fully prepared to prevent the perpetration of any such injustice, and
proceeded to disqualify the resurvey as follows:
“Bruce, in making said alleged resurvey ... did not follow or
regard, and did not attempt to follow or regard, the original
government mounds so placed and established when said lands
were originally surveyed ... and did not observe and follow the
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boundaries and monuments as run and marked by the original
survey ... but absolutely disregarded the same, and likewise
disregarded the survey of Huston and the original mounds
found, located, and described by him ... and made said alleged
resurvey ... not for the purpose of making the same conform
with the original ... but for the purpose, apparently, of
equalizing and making uniform in amount of acreage the
different quarter sections ... and for the correction of alleged
errors ... said alleged section lines ... run through fields and
groves, and in some instances through farm buildings, all of
which improvements were made by landowners in reliance
upon the original government survey ... Surveyor Bruce ...
ignored and materially varied from the original survey ... this
neither Bruce nor the supervisors of Iowa civil township had
any authority to do ... the only authority is ... established by the
United States survey ... corners established by the original
surveyors under the authority of the United States could not be
altered, whether properly placed or not, and no error in placing
them could be corrected."
The language used here by the Court staunchly supported the essential
concept that measurements are subordinate to all forms of physical evidence,
and therefore cannot control, or even come into play, unless all relevant
physical evidence is absent. This position taken by the Court fully accords
with the intent of the GLO itself, in the implementation of the PLSS, which
anticipated that the typical settler would rely initially upon the GLO plat,
when selecting his land, but would ultimately rely most heavily upon the
actual evidence of the original survey that he finds on the ground, when
arriving to take possession of his land and put it into actual use. Its
noteworthy that the Court saw the remaining evidence of the resurveys done
by Huston, the early retracement surveyor who performed his work at a time
when many or all of the original monuments still existed, as a valid basis for
justifiable reliance, by both the settlers and any subsequent surveyors,
thereby accepting the presumption that Huston properly perpetuated those
original corner locations that were already obliterated, at the time when he
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did his surveys in the area. Bruce however, rather than respecting the work
of his predecessors, or the rights of the land owners, adopted the approach
that was apparently recommended to him by the township supervisors, who
evidently wanted a whole new set of lines created, based on precise
measurements, wrongly supposing that they had the authority to order such a
resurvey. Acting under that false premise, Bruce mistakenly undertook to
independently resurvey and remonument the entire township, in direct
contradiction to previous judicial guidance, which we have seen so
poignantly expressed in comparable previous cases by the Court, with the
result that his work could have no controlling effect or value. In fully
upholding the lower court decision, the Court made it clear that no resurvey
rejecting established boundaries in favor of measured locations, at which no
original survey evidence existed, could hope to prevail, so the
remonumentation work that had been very diligently carried out by Bruce in
1909, in his ignorance of the law, had all been for naught. In so ruling, the
Court dismissed the point made by the township supervisors that the settlers
had not provided legal descriptions of all their individual lands, stating that
the specific boundaries of each party were obviously irrelevant to the matter
at hand, since every resident of the township had a legitimate interest in
maintaining the existing section line road locations, which they had all come
to rely upon, confirming that Hoekman and his fellow plaintiffs had all acted
wisely, to preserve the harmony of their community. The Court, in it's
wisdom, knew that the passage of time can quickly render that which was
once clear and certain apparently uncertain, by removing the original settlers
and their personal knowledge from the scene, potentially leading to the
destruction of properly established land rights. Therefore, the Court quite
logically adhered to the legal presumption that the original settlers had
properly located their controlling corners, at a time when original
monuments were still in evidence upon the ground, and its important to
understand that this presumption at law remains in effect today, even many
decades after the passing of the settlers, because their successors have an
equally valid right to continue to rely on such legitimately established
boundaries.
190
MILLS v LEHMANN (1911)
This case represents a continuation of the Court's efforts to mandate
consistent respect for all of the boundaries that were established through the
work of the original GLO surveyors, and it presents the same basic scenario,
involving contention over the location of a particular section line, that
produced several comparable decisions that we have already reviewed, such
as those rendered by the Court in the 1902 McGray case and the 1910
Wentzel case. At this point in time, direct physical evidence of the earliest
GLO surveys was already beginning to become scarce, as the pits and
mounds that had been established as corner monuments decades before had
been largely wiped out in developed areas, primarily by the construction of
roads and the cultivation of fields, but enough original physical corner
evidence still remained intact in some areas to identify the original GLO
corner locations, and that was the case in this controversy. The contrast
between the way this case was treated by the trial court and the way the
Wentzel case was treated at the trial court level, less than 2 years earlier,
shows that the Court's message concerning the importance of original survey
evidence was finally reaching the trial judges and sinking in, which would
have the effect of minimizing the number of boundary cases that would
come to the Court in the future, since the trial courts were finally starting to
understand how to properly handle PLSS boundary disputes. Here at last we
mark the end of the errant career of Van Antwerp, whose legacy is clearly an
unfortunate one, yet like all such lamentable episodes, his body of work
provides valuable material from which important lessons can be learned, that
may save future surveyors from sharing his fate. Although he was evidently
unable to comprehend that the Court would never approve his methodology,
Van Antwerp no doubt believed that he was a great surveyor, performing
what he saw as the necessary task of correcting all past measurement
mistakes, through the application of advanced measurement science, which
he had undoubtedly mastered. His principal error however, which doomed
his reputation and his legacy, was simply failing to recognize that the sole
objective of PLSS boundary retracement is historical preservation, and not
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numerical perfection. The fatal flaw in his thinking was that he wanted to be
an original surveyor, but he was born too late, and instead of realizing that
he could not function as an original surveyor, creating new section lines
where he thought they should be, without damaging the land rights of
innocent people, he chose to gratify his own desires, rather than respecting
the land rights of the citizens, making it necessary for the Court to strike
down his work, in order to protect the land rights of innocent entrymen and
their successors. Although we are obviously now much farther removed
from the time of the original GLO surveys, this same vital principle
concerning all resurveys still holds true today, every PLSS retracement
surveyor must always remain mindful of the fact that his or her only goal is
to recover and perpetuate historic evidence, and not to establish new
boundaries by means of precise measurements, in order to avoid finding
themselves standing in the shoes of Van Antwerp.
Prior to 1911 - Mills became the owner of the southeast quarter of
Section 13 in a certain township, apparently consisting of cropland in
Aurora County, and Lehmann became the owner of the north half of
Section 24 in that same township. No details relating to how or when
either of these two men acquired their respective lands are known, but
they were presumably either original entrymen themselves, or they
were descendants of original settlers, who were the patentees of their
portions of these sections, and there was never any dispute that each
man held good title to the described portion of his section. Exactly
when the original GLO survey subdividing this township was done is
also unknown, but it was certainly several decades in the past by the
time the controversy between these two farmers arose. The township
in question presumably developed in the normal manner over the
passing decades, until it was fully occupied by entrymen, or their
descendants, as each generation accepted the existing boundaries that
had been handed down to them by their predecessors. At an
unspecified date however, within a few years prior to the litigation
between Mills and Lehmann, a resurvey of an unspecified portion of
this township was executed by Van Antwerp, and one result of this
resurvey was the relocation of the section line between the properties
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of Mills and Lehmann, which this resurvey placed about 130 feet to
the north of it's previously accepted location. Whether or not either
Mills or Lehmann had any involvement in requesting this resurvey is
unknown, but once it was completed, and it's potential impact on their
land was seen by these men, they both quite predictably took up
opposing views as to it's validity. Whether or not Lehmann ever
actually took any action, in an effort to take possession of the several
acres located directly on his side of the resurveyed line is unknown,
but he apparently expressed his belief that the area between the old
and new section lines belonged to him, so Mills filed an action against
Lehmann, seeking to prevent him from treating the relocated section
line as his new northerly boundary, and to have the resurvey declared
invalid.
Mills simply made the very same argument that we have already seen
successfully made in numerous prior cases, which is that the controlling
nature of original surveys is absolute, and no resurvey, such as the one in
question here, which deviates from an original survey in any respect, can
have any controlling value, so Lehmann had no valid basis upon which to
claim any land lying north of the long established section line dividing their
lands. Lehmann argued that the manner in which the resurvey had been
conducted was correct and appropriate, and the methodology employed in
performing the resurvey was technically sound, so the resurvey should
control, regardless of whether or not it happened to coincide with any
existing boundaries, because the resurvey had resulted in a more equal
division of the land within the township, through measurements that were
superior in quality to the those made during the original survey. The trial
court, following the existing body of case law, which had been established
through the adjudication of the comparable cases that we have already
reviewed, held that the resurvey had been improperly executed and could not
control, confirming the originally established section line as the boundary
between the litigants.
As will be readily noted, this dispute was so similar in character to
those that we have seen resolved by the Court in a number of earlier cases
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involving PLSS principles that one might well wonder what made Lehmann
think he had any chance of prevailing, and in fact he had none, but the
opportunity to gain land proved to be too tempting for him to resist, so he set
out on the Quixotic mission of attempting to justify an unjustifiable
resurvey. In the view of the situation proposed by Lehmann and his legal
team, Mills should bear the burden of proving that the established section
line location was legitimate, since a resurvey had been done, which had
shown that location to be incorrect, by means of precise measurements, so
the resurvey should be presumed to be correct. If Lehmann had been able to
convince the Court to shift the burden of proof to Mills in this manner,
Lehmann could have prevailed, since Mills could show no definitive
evidence that the long honored section corner locations were genuine
originals, and the retracement surveyor had in fact rejected them, but the
Court was unwilling to grant the work of this particular retracement surveyor
the presumption of correctness. Given it's prior experience with this
surveyor, previously documented herein, its not surprising that the Court
was disinclined to favor his work, and here he had in fact once again
disregarded valid boundary evidence, even more flagrantly than he had
previously done. This time, as his work was described by the Court, Van
Antwerp had not only rejected all of the existing corner locations inside the
township boundaries, he had accepted only the four township corners,
rejecting and relocating all of the other monuments along the outer
boundaries of the township, in an apparent effort to rectify the township
boundaries, and he had then created entirely new section lines inside the
township, based solely upon his own proportioned section corner locations
along the township boundaries. Observing the exceedingly disruptive and
harmful potential of this scenario, the Court was unswayed by Lehmann's
assertion that the resurveyed corner and line locations should be presumed to
be correct, on the basis that no survey which deliberately bypasses original
survey evidence can support any such presumption. The Court thus
established an important precedent, by rejecting the use of proportionate
measurement, where physical evidence of the original GLO survey exists,
representing a logical extention of the larger principle that measurement
evidence alone is not sufficient to overturn the presumption that long
established and accepted section corner and quarter corner locations have a
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valid origin, ultimately resting upon original survey evidence. Reiterating
the relevant portion of the instructions given by the trial judge to the jury,
which Lehmann had found to be objectionable, for the purpose of silencing
his objection, the Court approved and applauded both the knowledge of the
trial judge and his application of the law to the circumstances at hand, as he
had very plainly and thoroughly outlined the controversy:
“Now, when the government has made these surveys ... they
make a plat ... while it is supposed that every quarter section of
land will have just 160 acres in it, it is a matter of common
knowledge that very often it does not ... if the boundary to any
quarter section of land, as indicated by that plat ... can be
ascertained, it will govern ... the boundary lines ... must always
and for all time govern, and no man or no state has any right to
change it or alter it in any manner ... the difficulty arises in the
fact that very often the landmarks ... become obliterated ... it is
a matter of common knowledge that these pits are not always
made just as perfect as is expected by the Land Department ...
Those mounds must govern ... whether they were right or
wrong; they are the marks that must control ... no matter how
incorrect the survey is, no matter how crooked the line may be,
no matter how far off from the proper place in the field notes
the landmarks may be placed, those must control ... a zigzag
line ... must absolutely control; and no surveyor and no law has
any business or any right to change it ... a surveyor who is
called out to resurvey a township or a part of it, his purpose is
not to establish new corners. His business and object is to find
the old corners ... It is none of his business to make new
corners. His business and object is to find the old ones as near
as he possibly can. That is the idea of these resurveys."
The Court found itself in complete agreement with the trial court's
position, and went on to declare that this message "embodies a very clear
statement of the law" emphasizing that any deviant "resurvey could not be
considered", expressing it's appreciation of the fact that the trial judge had
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properly followed the same PLSS principles that the Court itself had adopted
and upheld in deciding comparable conflicts. Its important to note as well
that the position approved here by the Court also rejects the concept,
apparently practiced by some surveyors of this time period, such as Van
Antwerp, that errors in an original survey can be corrected if they exceed a
certain tolerance or limit, which can be arbitrarily defined at the discretion of
the retracement surveyor. The view of the value of original surveys taken on
this occasion by the Court is quite to the contrary of this notion however,
and with very good reason, because under the law the absence of precision
in an original survey cannot operate to revoke the right of the entrymen and
their successors to rely fully upon all original monuments, wherever they
were originally placed, and it is this principle that forms the foundation of all
land rights acquired under the PLSS. Original surveys, the Court recognized,
are indeed absolute, as against subsequent surveys, although they are not
necessarily absolute in every land rights controversy, being subject to the
various principles of equity that can have an impact on boundary locations,
potentially making the record location of a given line moot and irrelevant,
when in conflict with other elements of the law relating to land rights.
Nevertheless, Lehmann's opportunistic attempt to take advantage of the Van
Antwerp resurvey, since it happened to operate to his benefit, proved to be
completely unconvincing to the Court, which fully upheld the lower court
decision against him, as he might have expected, had he been aware of Van
Antwerp's poor judicial track record. In defense of Van Antwerp, it does
appear that he set out sincerely, to fulfill his own vision of what a superior
surveyor should be, unwilling to accept anything less than perfect precision,
but as a result of this mindset, he was never able to derive any benefit from
any of the admonitions regarding his work that were delivered by the Court,
which in his view rendered him nothing more than a slave to the original
survey, bound to repeat all of its deficiencies, and left him unauthorized to
improve upon it in any way. Unfortunately for him, his desire to perform all
of his work with complete independence made the role of the retracement
surveyor an unsuitable one for him, since he failed to see any value in
protecting established boundaries, although that is in fact the only proper
role of the retracement surveyor, and perhaps most ironically, any wise and
experienced boundary surveyor today would be thrilled to discover and
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embrace the very same evidence that he so routinely rejected as
unacceptable, under his personal standard. In the end, Van Antwerp's
incessant desire to achieve perfection by correcting every previous survey
only served to make his own work utterly unreliable in the eyes of the Court,
which of course are always focused upon justice rather than precision,
negating the value of all of his work and wasting his own outstanding
measurement skills, with the ultimate result that the judicial record
pertaining to his work has sealed his reputation for posterity.
COULTER v GUDEHUS (1913)
Having established most of the fundamental principles applicable to
PLSS boundary evidence and boundary resolution over the two previous
decades, such as the principle of monument control, and the presumption
that all existing physical evidence of PLSS boundaries has a legitimate
origin, being based upon the original GLO surveys, the Court here moved on
to address some of the judicial issues involved in the litigation of boundary
disputes, such as the burden of proof and the appropriate standard of proof.
Here again, just as in the Mills case, which we have just reviewed, the
burden of proof turns out to be a key issue requiring the Court's attention, to
correct an erroneous view held by a trial judge in this instance, illustrating
how this critical factor often controls the outcome of controversies over
boundaries. Contrary to popular belief, litigants never enter a courtroom as
equals, one side always has at least one essential presumption at law, such as
the presumption of innocence for example, operating in their favor, and the
opposing side shoulders the corresponding burden of presenting adequate
proof, to overcome the effect of any such legal presumption. In the context
of PLSS boundaries, the relevant presumption at law pertains to whether the
corner or corners in dispute exist or are lost, since only when a corner is lost
can it be properly restored using measurements of record. As was
particularly well evidenced in the Mills case, the Court has always been
strongly inclined to accept and approve all physical boundary evidence that
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has been the subject of long and justifiable reliance by land owners, and that
position is reaffirmed by the Court in this case, as the Court once again holds
that any resurvey attempting to restore a corner that was originally
monumented by the GLO, in defiance of physical boundary evidence, on the
basis of measurements, cannot control. In fact, perhaps the most important
lesson for land surveyors to derive from decisions of the Court such as this
one is the concept that PLSS corners are never presumed to be lost, the
burden of proving that any given corner is truly and conclusively lost always
falls upon the party asserting that the corner location can be restored only
though the use of evidence of record, such as measurements. In addition, the
Court here very admirably demonstrates that by this point in time it had
already acquired both superior knowledge and wisdom relating to proper
boundary determination, by adopting the appropriate standard of proof,
suitable to conflicts over the validity of boundary evidence, rejecting an
artificially elevated standard, that would have the effect of nullifying a vast
amount of highly cogent and relevant evidence. One other noteworthy
element of this case, which distinguishes it from most of the PLSS cases that
we have reviewed previously, is that it does not appear to involve intentional
disregard for original survey evidence, although it does of course stand as
another example of poor decision making, and inadequate recognition of the
value of physical boundary evidence, on the part of the surveyor whose work
is negated here by the Court.
Prior to 1913 - Coulter became the owner of the northwest quarter of
Section 13 in an unspecified township in Brookings County, and
Gudehus became the owner of the southwest quarter of Section 12 in
that same township. No details relating to how or when either of these
two men acquired their respective lands are known, but they were
presumably either original entrymen themselves, or they were
descendants of original settlers, who had become the patentees of their
portions of these sections, and there was never any dispute that each
man held good title to the described portion of his section. This
township was evidently subdivided and platted by the GLO prior to
1880, because by that time settlement of the township was already
well underway, and the two quarters owned by these two men were
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already occupied, either by them or by their predecessors. The
location of the quarter corner between Sections 12 & 13 was evidently
not in dispute during the early years of settlement, when the original
monument marking that corner was still in existence, and fences
running to it from unspecified directions were built, at an unspecified
point in time, in reliance upon that original monument, leaving it at
least partially obliterated, but effectively perpetuated by the fence
corner itself, and by the knowledge of the surrounding land owners.
At an unspecified date, a resurvey was done, during which some
remaining evidence of the original monument marking this quarter
corner was found, and it was accepted as a genuine original corner, at
an unspecified later date however, during another resurvey, performed
by a different surveyor, the fence corner location was either ignored or
rejected, and a new quarter corner was set, about 100 feet south of the
fence corner at which the GLO monument had once stood. The
locations of the two section corners marking the ends of the line
between Sections 12 & 13 were never in dispute, and this new quarter
corner was set during the second resurvey on a straight line between
those accepted section corners, in accord with the GLO plat and field
notes. Whether or not either of these resurveys had been done at the
request of either Coulter or Gudehus is unknown, but once the second
resurvey was completed, making the location of their common quarter
corner a matter of open controversy, the two men quite
understandably took opposing views as to which resurvey was correct.
Whether or not any action was ever taken by anyone based on the
second resurvey, such as removing or relocating any of the fences
running to the obliterated quarter corner monument, is unknown, but
Gudehus apparently made it clear to Coulter that Gudehus believed
that he owned the land south of the fence corner, extending southward
to the section line that had been marked during the second resurvey.
Coulter therefore filed an action against Gudehus, seeking to have the
validity of the original quarter corner location confirmed, and to have
the second resurvey struck down as invalid.
Coulter argued that the long standing quarter corner location, which
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had been accepted by all of the original settlers and the subsequent
occupants of the area as a genuine original corner for many years, was the
true quarter corner location, and that the monument marking that location
was actually still in existence, although it had been partially obliterated by
the construction of fences leading to it, and thus it had never become lost.
Therefore, he maintained, the first resurvey had correctly adopted and
confirmed the original quarter corner location, and the second resurvey had
incorrectly treated the original monument as lost, and improperly relocated
the quarter corner to a point where it had never been, on the line running
directly between the existing section corners. Gudehus argued simply that
the quarter corner in question had in fact become lost, and it had correctly
been located on the line running directly between the existing section
corners during the second resurvey, so all of the land north of that line was
part of his quarter. The trial judge instructed the jury that Coulter, as the
plaintiff, bore the burden of proving that the location contended for by him
was the true original quarter corner location, by proving beyond a reasonable
doubt that the evidence remaining in that location was in fact the original
monument, and that the corner in question should otherwise be considered
lost. Following this instruction, the jury found that the corner in question
was indeed lost, and that it had been placed in it's correct position during the
second resurvey, and the trial court accordingly ruled in favor of Gudehus.
This case stands as a classic example of a pure contest between two
varying retracement surveys, resulting from the differing judgment exercised
by two different surveyors, who were both confronted with essentially the
same boundary evidence, but came to different conclusions as to the
meaning and significance of the evidence that was available to them.
Although the length of time that passed between these two resurveys is
unknown, there is no indication that the conditions on the ground in the
vicinity of the quarter corner in question ever changed materially, so these
two surveyors had substantially the same evidence at their disposal, yet they
produced very different results, because they took diverging approaches to
the critical task of evaluating boundary evidence. There is no evidence of
whether these two surveyors knew each other, or ever communicated with
each other, but their work was in fundamental disagreement, because one
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chose to take all of the evidence that was available into consideration, and
base his decision upon the best available evidence, while the other either
deliberately chose not to do so, or simply neglected to do so, resorting to
measurements instead, as the basis for his results. The Court recognized that
the sole source of this dispute was the controversy over one particular
quarter corner location, and the Court fully understood that quarter corners
are rarely found directly on line between section corners. The core issue, the
Court stated, was whether the original quarter corner monument was lost or
merely obliterated, but the court also realized that the conflict over the status
of the original monument brought into play a highly important subsequent
issue, and that was the matter of which party bore the burden of proof. The
trial judge, when instructing the jury, had placed the crucial burden of proof
on Coulter, by indicating that the corner location in question should be
treated as uncertain or doubtful, and therefore as having been lost, leaving it
subject to relocation based on proportionate measurement, unless Coulter
could show the contrary, since the validity of Coulter's corner location had
been called into question, and since it had not been accepted during the
second resurvey. Observing the clear injustice in this jury instruction, and
pointing out that the instructions given to the jury by the trial judge were
mutually conflicting, the Court took the position that the alleged uncertainty
relating to the corner location in question, that had been raised by Gudehus,
was not sufficient to justify the conclusion that the corner was lost. Noting
that several witnesses were in agreement that the fences had been built to the
original monument location, and cognizant that the surveyor who had
performed the first resurvey of the section line in dispute had done a
thorough job of seeking out testimonial evidence of the original corner
location, while the second retracement surveyor may have never even
considered the possibility that the quarter corner had been seen by any
surviving settlers, the Court decided that the evidence was indicative of an
obliterated corner. Speaking with reference to the contested jury instructions,
the Court found that the trial judge had improperly characterized the
applicable law, and he had thereby misguided the jury:
“It must be borne in mind in this case that appellant was
contending, and his evidence tended to show, that the corner
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was not only not lost, but not even entirely obliterated ... Under
such instruction, it was necessary that the mound claimed by
appellant as the government mound should be unquestioned or
unchallenged before such mound would control over courses
and distances ... There is absolutely nothing in ... our statute
that will support an instruction such as the one complained of ...
all the surrounding visible evidences, such as improvements,
may be considered in determining the existence of a
government mound ... each and every thing that may fairly tend
to aid the jury in determining whether the original mound is still
in existence. Then, weighing all such competent evidence, the
jury should determine, from a fair preponderance thereof,
whether or not the mound contended for is the government
mound ... the location of a disputed corner is an open question,
to be determined from all the evidence, and when determined, it
controls. There is no hint that from the mere fact that a certain
corner is questioned it becomes an uncertain, doubtful or lost
corner, and that the government field notes will control in
determining the location of it ... where the location of a
government corner is established by clear and satisfactory
evidence, such location must control over the field notes, or
over ... where the corner should have been located ... the
instruction ... was clearly incorrect, and it was prejudicial."
As will be readily noted, the Court here adopted the highly flexible
and subjective phrase "clear and satisfactory" as the most appropriate
expression of the applicable standard of proof, to be employed when
evaluating boundary evidence, such as possible original monument
locations. Moreover, the Court was entirely comfortable with the use of a
broad range of factors as boundary evidence, particularly evidence such as
physical improvements, dating from a time when original monumentation
was likely to still be in distinctly recognizable condition, and testimonial
evidence as well, emanating from parties with specific knowledge, through
personal observation, of original monument locations. Also worthy of note is
the Court's wise decision to require only "a fair preponderance" of evidence,
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for the purpose of supporting obliterated original monument locations, rather
than mandating strict adherence to the unduly harsh "beyond reasonable
doubt" standard, the application of which, the Court was well aware, would
often lead to the rejection of legitimate original monument locations that
were actually just obliterated, and should therefore be protected. The action
of the Court in taking this stance, regarding the standard of proof applicable
to boundary evidence, was especially bold and progressive, as well as replete
with wisdom, in view of the fact that the published GLO standard at this
time expressly called for "beyond reasonable doubt", and that standard was
destined to remain technically in effect at the federal level for nearly another
century, although only rarely put into practice during that time, until finally
being officially retired by the BLM, with the publication of the 2009
Manual. In addition, on this occasion, the Court very wisely treated the
existing statutory language, making reference to "doubtful evidences or
appearances of monuments" as being inapplicable to situations such as the
one presented by this controversy, since there is no indication that this
statutory language was ever intended to negate the value of any legitimate
boundary evidence. Having determined that the second resurvey could not
be upheld as correct, and that neither the jury verdict nor the lower court
ruling against Coulter could be allowed to stand, the Court reversed the
lower court decision, very astutely leaving the boundary in question where it
had always been, and thereby upholding the concept that where any valid
boundary evidence exists, the corners and lines of the original survey are
merely obliterated, and not lost. In so holding, the Court had clarified that
both testimonial and physical evidence can control PLSS boundaries, and
confirmed that the presence of such evidence can render it unjustifiable to
treat a given corner as lost, making the use of proportionate measurement
inappropriate, barring a complete absence of acceptable physical boundary
evidence. Interestingly, Coulter had also attempted to present a case for
adverse possession, which had been properly denied by the trial court, the
Court indicated, because the color of title element of adverse possession
could not be proven in a boundary dispute, revealing that at this point in time
the Court was still disinclined to allow adverse possession claims to have
any impact on boundary locations, a position which would soon be swept
into history however, as we will observe.
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The same position that the Court had taken in the Coulter case,
regarding the burden of proof relating to PLSS monuments and corners, was
set forth by the Court again in 1914, in the case of Byrne v McKeachie,
which took place in Yankton County, as a consequence of yet another
complete township resurvey that had been erroneously performed in the
manner of an independent resurvey. In that case, the battle was over the
location of one particular interior section corner that bounded the properties
of both litigants, with Byrne supporting the resurveyed corner location and
McKeachie defending the original corner location, based on long standing
improvements, including roads, fences and tree lines. The Court reversed a
lower court judgment in favor of Byrne, stating that the lower court had
wrongly adopted the resurvey as legitimate and controlling, and in so
holding the Court also reiterated that all physical evidence bearing in any
way upon the location of any given PLSS corner must be "absolutely lost"
before any resurvey can control the location of that corner. The resurvey in
question had relocated the section corner at issue by approximately 500 feet
from that corner's original location, as indicated by the many relevant
improvements that had been made by various parties in the area, leading the
Court to declare that no measurement discrepancy of any magnitude,
however great or small, can justify ignoring or bypassing presumptively
valid evidence of original GLO corners or lines. In addition, the Court
concluded by observing that an original PLSS corner, evidenced by accepted
improvements of historic origin, "needs no survey" to validate it's position,
which stands as a poignant reminder that only resurveys which honor all
legitimate boundary evidence can hold any controlling value. Also in 1914,
in Mason v Braught, which was actually a conflict over the ownership of an
entire quarter section, resulting from an allegedly severely skewed range
line, leaving the township at issue potentially distorted by up to half a mile
in width, rather than a boundary dispute, the Court upheld a lower court
ruling that the township was about half a mile short along it's north
boundary, based on evidence pertaining to the location of a particular
township corner that had become a source of controversy. In doing so, the
Court reminded the parties that a resurvey executed by a county surveyor
holds no more controlling value than any other retracement survey, and
again emphasized that with respect to original PLSS monuments "lost means
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... completely lost", and also reiterated that no PLSS corners can be
legitimately replaced through the use of proportionate measurement unless
such corners have first been conclusively proven to be genuinely lost.
Interestingly, the Mason case stands as the second most frequently cited case
centered upon PLSS evidence in South Dakota history, yet it still ranks far
behind the landmark 1893 Randall case, which has been favorably cited
nearly as often as all other South Dakota boundary cases combined. All of
these outstanding early decisions of the Court nonetheless collectively serve
as a stern warning of the potential judicial consequences of failing to honor
openly apparent boundary evidence, or rejecting such evidence on the mere
basis that it does not reflect modern standards of precision, or does not
conform to locations arrived at by means of modern measurements.
KORTE v O'NEILL (1914)
As has already been noted, the Court was required to address
description errors of various kinds during the early years, but it was not until
this time that the Court first dealt squarely with the substantial alteration of
the text comprising a description as a matter of principle. Here we look on as
the Court adopts the modern concept of description reformation, in
recognition of the fact that innocent parties operating in good faith often
enter definite agreements, yet fail to properly document such agreements,
due to their ignorance of legal description requirements. While this case is
centered upon a conveyance agreement, rather than a deed, the document at
issue is equivalent in effect to a deed, in that the land involved must be
properly described in such an agreement document, just as it must be
properly described in a deed, making the principles that are presented here
equally applicable to descriptions contained in deeds or any other documents
that are instrumental to any transfer of land or land rights. Earlier in 1914, in
the case of Van Abel v Wemmering, the Court had approved the correction
of a mistaken township number, demonstrating that such a description error
does not necessarily render a description void, without making any reference
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to such an alteration to a legal document as description reformation, treating
the mistake that had been made in that instance as a mere typographical
error. In the case we are about to review however, the Court is asked to
approve the complete replacement of a wholly inadequate legal description,
requiring the Court to deal with description reformation as a distinct
concept. The position taken here by the Court represents a logical extention
of the same principle that had been applied by the Court when accepting
relatively minor description corrections, such as isolated numerical errors,
which is that descriptive language is not absolutely or rigidly controlling,
and need not be perfect in order to support a legally valid and binding
conveyance, therefore insufficient descriptions are potentially subject to
reformation based on extrinsic evidence. The outcome of this case thus
serves as a clear illustration of the fact that the description requirement set
forth by the statute of frauds does not prevent description reformation, since
even a patently unclear or incomplete description is not necessarily invalid,
if sufficient evidence of the actual meaning of the written words can be
presented, emphasizing the importance of reading and understanding the
language of any description in the manner that it was intended to be
understood by the parties to the original conveyance. In addition, from this
case we learn that the concept or rule that intent must be derived solely from
documented language does not mean that no extrinsic evidence can be
presented in cases involving description issues, because such evidence can
be relevant to the determination of the meaning of the words that were used,
and although descriptive words cannot be altered or replaced in the absence
of grounds for reformation, the true intent of the parties can often be
revealed by evidence of the meaning that the existing descriptive terms had
to those parties.
1906 - Zimmerman was the owner of a large amount of land, spread
out over several separate locations, some of it being in South Dakota
and some of it being in Minnesota, and he had four daughters, Esther
Korte, Laura Zimmerman, Rose Swengel and Sarah Korte. Esther and
Sarah were apparently married to the Korte brothers, Rose was
married to Swengel, and Laura was unmarried at this time, but she
would soon be married as well, thereby becoming Laura O'Neill.
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Zimmerman died, leaving a will that distributed his various land
holdings among his four daughters, but two of the sisters, Esther and
Sarah, were unsatisfied with the contents of their father's will, so they
indicated to Laura and Rose that they intended to legally contest the
will. In an attempt to avoid a legal battle over their father's land, the
four women met and forged an agreement redistributing their father's
real property among themselves in a manner that appeared to be more
satisfactory to all of them. They reached their initial agreement orally,
through conversation among themselves, but once they had all the
details settled to their mutual satisfaction, they all went to the office of
an attorney and asked him to reduce their agreement to writing, and he
agreed to do so. The attorney faithfully listened to everything the four
women told him, putting each item in writing, just as they described
the various tracts of land to him, and a document setting forth their
intended division of all of their father's real estate was thereby
produced, which was then duly signed by all of the sisters in the
presence of the attorney. All of them believed that they had legally
resolved all of the issues that had been raised by Esther and Sarah, but
in fact they had failed to legally describe some of their father's land,
because they had used only the same general terminology that he had
used in his will to describe his various tracts. Specifically, two quarter
sections that Laura and Rose had agreed to convey to Esther and
Sarah were described in their written agreement only by name, as "the
Rondell quarter" and "the Westport quarter", leaving the actual
location of those particular tracts, among the vast land holdings of
their late father, utterly unknown to anyone other than the four women
themselves. Laura and Rose evidently later had second thoughts about
this agreement however, and when they were informed that the
agreement document was legally insufficient, because it failed to
legally describe all of the land that was the subject of the agreement,
they apparently told Esther and Sarah that they believed that the
agreement was invalid, so they were not bound by it, and they would
not honor it. Esther and Sarah then filed an action against Laura and
Rose, seeking to have the conveyance agreement deemed legally valid
and binding upon all of the sisters.
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Esther and Sarah argued that the agreement in question had been
freely and voluntarily made between all of the sisters, and was complete in
all respects, so although it was not legally sufficient for land description
purposes, as it had been written, it should nevertheless be treated as legally
binding, and reformed as necessary, because all of the sisters knew, and fully
understood, exactly what land was being referenced by all of the descriptive
words that appeared in the agreement document. Laura and Rose argued that
because the descriptive language that had been used in the agreement
document was legally inadequate, the agreement represented a violation of
the statute of frauds, so it could neither be legally enforced as it had been
written, nor could it's existing terminology be altered for any corrective
purposes, therefore it could not be treated as legally binding and they were
under no legal obligation to carry out their part of the agreement. The trial
court allowed Esther and Sarah to produce and submit evidence clarifying
the location of the two quarter sections in controversy, and then agreed that
the insufficient descriptive language that had been used in the agreement
document was subject to reformation, holding that the documented
agreement was subject to enforcement as reformed, and therefore requiring
Laura and Rose to convey the land at issue to Esther and Sarah.
There was obviously no question in this case that the two quarter
sections at the heart of this dispute had not been properly described in the
drafting of the document defining the agreement between the four sisters,
but this observation resulted in two key questions that would determine the
outcome of the litigation. The first question was whether or not a true state
of agreement had ever actually existed between all of the sisters concerning
their individual land rights, and the second question related to what form of
evidence could be employed by the plaintiffs in their effort to preserve the
validity of that document, by rectifying the inadequate descriptive language
that appeared in it. The reformation of a document must be expressly sought
as a remedy, and a valid case justifying such alteration of a contractual
document must be made, before description reformation can be judicially
approved and put into effect, courts will not independently suggest
reformation as an alternative, or impose it as a solution, if it has not been
expressly requested. The concept of reformation has long been recognized as
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a legitimate means of rectifying defects of various types, that are often found
in contracts of all kinds, so this concept does not apply only to descriptions,
or only to deeds, yet it had not been exercised in this manner in South
Dakota at this time, therefore the Court took the opportunity presented by
this case to embark on an extensive and very insightful examination of the
existing authority relating to the subject of description reformation. The key
element, the Court indicated, in determining whether or not an alleged
agreement has actually been made, reached or entered, is the evaluation of
any and all evidence tending to show that the parties achieved a true meeting
of the minds. If such a state of agreement was reached, concerning every
fundamental or essential point upon which agreement was necessary, then
the agreement did in fact exist, the Court noted, and the documentation of
that agreement is secondary in importance to the actual content of the
agreement itself, because an agreement exists independently of
documentation, which represents merely one source of evidence pertaining
to the agreement at issue. In this instance, the Court found that an agreement
clearly had been properly completed by all of the litigants, and the source of
the controversy between them, the Court realized, stemmed only from their
mutual inexperience with descriptive language, and their unwise reliance
upon an attorney who was evidently equally unfamiliar with legal
description requirements. The Court acknowledged that such a description
error or inadequacy, resulting from a mutual mistake, based upon innocent
ignorance of legal or technical descriptive language, and a mutual failure to
comprehend the significance of legal document requirements, could not
equitably be allowed to destroy an otherwise valid and complete agreement,
nor could the ignorance of the attorney who had acted as the drafter of the
document in question negate the validity of such an agreement. Such
description errors, the Court decided, were indeed subject to correction
through reformation, and citing comparable cases from California, Idaho,
Kansas, Nebraska and Wisconsin, along with numerous respected legal
commentators, the Court explained that:
“The four sisters met and entered into an oral agreement, very
specific and full in all it's details ... This oral agreement was
sufficiently definite and certain in its terms as to permit of its
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specific performance if it had been in writing and therefore
valid under the statute of frauds ... all parties intended to have a
written contract that should express the agreements that had
been entered ... they did not know the writing needed to be
more definite and certain ... parol evidence is admissible to
identify real property under the descriptive terms adopted by
the parties ... parol evidence is admissible of any extrinsic
circumstances tending to show what person or persons, or what
things, were intended ... It is not strictly accurate to say that the
subject matter must be absolutely certain from the writing itself
...the certainty of description required under the statute of
frauds ... is not questioned. It is not essential, however, that the
description should be given with such particularity as to make a
resort to extrinsic evidence unnecessary ... In determining
whether a writing should be reformed, the question is whether
the parties used the language they intended to use ... against a
mistake ... arising from a misapprehension of the law by all
parties, equity does and should grant relief ... certainly
respondents ... can ask that the writing itself be reformed so as
to set forth ... the very agreement that had been entered into ...
the court properly admitted parol evidence tending to prove the
sense or meaning in which words were used."
On the crucial issue of whether or not extrinsic evidence could be
introduced, and allowed to correct the inadequate descriptive language of the
agreement document, the Court adopted the position that oral or parol
evidence was admissible, for the purpose of clarifying the location of the
quarter sections that had been described only by name in the agreement. This
correction of a written document based on verbal testimony was acceptable,
and did not constitute a violation of the statute of frauds, the Court observed,
because the names that had been used by the sisters to describe the intended
lands, represented a clear and complete description of those lands, as the
women had always identified those tracts amongst themselves. Since none of
the sisters denied that they understood which quarters had been identified by
the names used, the statute of frauds had been satisfied, because a meeting of
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the minds had been accomplished, and it had been documented in writing
using descriptive terms that were completely clear and certain to all of the
parties to the contract, despite the fact that no outside party could have
located the quarters in question using only the words that had been
employed by the contracting parties. Cognizant of the fact that description
reformation represents a tool by which legal effect can be given to
conveyance agreements that have been legitimately made, but poorly
documented, due to a lack of education or resources on the part of those who
often engage in such affairs, the Court, in it's desire to support all valid
agreements, fully upheld the lower court decision to replace the description
of the quarters in dispute with a valid legal description of their location, and
enforce the conveyance agreement. In so holding, the Court emphasized that
there is an important distinction between the use of extrinsic evidence for
reformation purposes, when it becomes necessary to eliminate potentially
fatal description flaws, in order to avoid declaring an otherwise acceptable
conveyance invalid, and the use of such evidence for plain description
interpretation purposes. In that regard, the Court very wisely distinguished
the use of extrinsic evidence to determine intent from it's use to determine
meaning, pointing out that when the issue at hand is the proper interpretation
of existing descriptive language, extrinsic evidence can be presented to show
what meaning the words used by the parties actually held in their minds,
while in cases involving description reformation, extrinsic evidence can
operate to prove that the parties did not select language that appropriately
expressed their real intent. The value in this important distinction lies in the
fact that it demonstrates that intent is always paramount, but when
interpreting existing language that intent must be derived from the words
that were actually used, while the concept of reformation goes further,
allowing the replacement of existing inferior terms with preferable ones, to
accomplish the essential goal of any description, which is to embody and
fully communicate the true intentions of the parties. In addition, the Court
concluded by confirming that financial compensation is not required for the
completion of a legitimate conveyance of land or land rights, since the
settlement of a land rights controversy, such as the one that motivated the
agreement made by Zimmerman's daughters, can be treated as equivalent to
payment, thereby supplying the requisite consideration supporting a valid
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transfer of land rights.
In 1915, two more cases involving legal descriptions, which may be
worthy of note at this point, came before the Court. In Evans v Doolittle,
Evans obtained a deed to a certain quarter section that had been lost to tax
delinquency several years before it was conveyed to him, and Doolittle
claimed to be the current owner of the quarter, as the successor of the party
who had obtained the tax deed, so Evans filed an action seeking to eliminate
Doolittle's claim by having the tax deed deemed to be invalid and void. The
attack by Evans on the validity of the tax deed was centered upon the fact
that it contained a PLSS abbreviation, of the kind that the Court had
previously declared invalid, but the description in this case also contained a
fuller PLSS enumeration of the location of the quarter, which was properly
spelled out, although even the fuller version of the descriptive text neglected
to state that the township was north and the range was west. The Court
upheld a lower court decision that the tax deed was valid, despite the
presence of the unauthorized PLSS abbreviation in the description, on the
basis that this inadequacy was cured by the presence of the full PLSS
description, stating that if any ambiguity which appears in the text of a legal
description is subsequently clarified within the same description, the entire
description will be treated as good and valid. The Court therefore agreed that
Doolittle was the owner of the quarter in dispute, and Evans had acquired
nothing, but not before characterizing the PLSS description in Doolittle's
deed as "inartistic", revealing that at this point in time the Court still viewed
the PLSS description form as problematic and troublesome. In the case of
Stearns v McHugh, also in 1915, McHugh was the owner of 3 adjoining
tracts, all of which fronted upon Main Street in Deadwood, and McHugh
erected a building for the purpose of manufacturing ice on one of his 3
tracts. Stearns was apparently a supplier of building materials, who had
provided McHugh with some, if not all, of the material that was used in the
construction of the ice plant, and Stearns therefore became the holder of a
lien against one of the 3 McHugh tracts, but for unknown reasons, the ice
plant was not built on the tract that was described in the lien held by Stearns.
McHugh was evidently unable to pay Stearns, so Stearns filed a foreclosure
action against McHugh, seeking ownership of the tract containing the ice
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plant. A lower court awarded ownership of the tract upon which the ice plant
had been built to Stearns, on the basis that the tract upon which the
construction had taken place had been the actual subject of the lien, and
another one of the McHugh tracts had been described in the lien by mistake.
The Court reversed that decision however, rejecting the claim that had been
set forth by Stearns, that the building amounted to a monument which
rendered the descriptive terms irrelevant, holding that the only tract upon
which the lien authorized Stearns to foreclose was the one that was
described in the lien document, regardless of where the building had been
built. In so ruling, the Court pointed out that the long line of cases upholding
the principle of monument control, which we have previously reviewed,
were all focused upon the acceptance of PLSS monuments, indicating that
the Court was unwilling to extend the controlling force bestowed upon
original PLSS monuments to structures such as the one that had been erected
by McHugh.
FLISRAND v MADSON (1915)
At this point we reach the second major South Dakota case focused on
riparian boundaries and land rights, which in fact has cast a long shadow,
having exerted a greater influence on the subsequent decisions of the Court
regarding riparian issues than the Olson case, previously reviewed herein. In
deciding the outcome of this case, the Court was required to deal with 5
major riparian topics, navigability, meanders, reliction, water level, and
islands, and the positions set forth at this time would be consistently adhered
to by the Court going forward, as we shall see, although some have stood the
test of time better than others. On the pivotal issue of navigability, the stance
taken here by the Court, favoring public rights over private rights, is one that
has often been called into question, yet it was destined to become the
dominant trend in riparian adjudication during the twentieth century. The
navigability status of any body of water is always a determination of the
utmost importance to boundary location, because only in the presence of
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navigability do many of the other riparian boundary issues arise, making the
Court's adoption of the controversial but widely accepted "pleasure boat" or
"recreational use" test for navigability the most crucial element of this case.
On the issues pertaining to both meander lines and reliction, the principles
applied by the Court in resolving this case stand as clearly valid and
unchallenged, the decision that meander lines cannot control either
boundaries or navigability being a logical extention of the Court's treatment
of meander lines in the Olson case, and the Court's hard line position on
reliction being in full accord with the widely acknowledged concept that
reliction cannot be measured at abnormal or extreme water levels. The most
novel aspect of the case we are about to review is the Court's approval and
acceptance of the so-called "shore zone" as a means of coalescing or
merging public and private land rights by allowing them to intentionally
overlap, in an effort to enable all parties, public and private, to best and most
fully utilize both land and water, as water levels fluctuate over time. This
policy, which enables any area lying above the low water line but below the
high water line of any navigable body of water to be used by the public
when inundated, but by the private riparian land owner when dry, has been
adopted by only a minority of the other states, most notably North Dakota,
which formally confirmed it's adoption 8 decades after it was embraced here
by the Court as the most appropriate navigable riparian boundary policy for
South Dakota. Lastly, we will watch as the Court takes a bold position in the
resolution of this case, with respect to an island, that was deemed to be too
insubstantial to be worth surveying by the GLO survey crew which
discovered it, when subdividing the township, but which proved to be an
enduring tract of land. The Court's view of the ownership status of this small
but stalwart island was not without wisdom at this early date, but there can
be little doubt that the same scenario would result in a ruling to the contrary
today, since federal cases that played out over the decades subsequent to this
case established that the federal omitted land concept is applicable to
unsurveyed islands that arose from navigable waters prior to statehood.
1873 - The GLO subdivided a certain township that contained the
southerly portion of a large lake, which would come to be known as
Lake Albert, in Kingsbury County. The southern end of the lake was
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located in Section 22, and it extended northward from there, covering
parts of Sections 1, 2, 3, 10, 11, 12, 14 & 15. The GLO meandered
this lake and numerous riparian government lots were platted all
around it, an island covering about 25 acres in Section 11, and located
only about 300 feet from the southeastern shore of the lake, was not
surveyed or platted however.
1874 to 1914 - During the early portion of this time period settlement
of the Lake Albert area began, and public use was made of this lake
by individuals and small groups of people for typical purposes such as
boating, fishing, hunting and trapping, but there was no indication that
the lake was ever used for any commercial purposes. Whether
Flisrand or Madson arrived in this area first is unknown, but at an
unspecified time, Flisrand acquired several riparian government lots
lying along the southeastern lakeshore, near the unsurveyed island,
while Madson was either living upon the island or he was making
some unspecified use of it. This lake was only about 10 feet deep at its
deepest point when full, and the location of the waterline varied
dramatically on a seasonal basis, because even relatively slight
changes in the water level caused the waterline to move relatively
great distances. Flisrand apparently desired to make use of some of
the land adjoining his property that was exposed by the receding
waters of the lake for much of each year, so he evidently obtained a
survey of the portion of the exposed lakebed that he intended to claim
and use, presumably for agricultural purposes. This survey, which was
performed by an unknown party, defined the boundaries of an area
projecting out into the lakebed, well beyond the GLO meander line,
which contained over 260 acres, and which also embraced most of the
unsurveyed island that was being claimed by Madson. The two men
apparently came into conflict at this point in time, due to the fact that
the land rights that they were claiming overlapped, so Flisrand filed an
action against Madson, seeking to quiet title in himself to the recently
surveyed portion of the lakebed, including the island in dispute, and to
have Madson's claim to the island declared to be invalid.
Flisrand argued that the GLO meander line along the lakeshore was
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not his boundary, because it no longer marked the true location of the
shoreline, since most of the lakebed was exposed as dry land for most of
each year, so he had the right to claim a portion of the exposed lakebed as
part of his riparian government lots, including the island in question, because
Madson had never legitimately acquired the island and was just a squatter,
with no land rights whatsoever. Madson argued that he had acquired rights
to the unsurveyed island, although it had never been patented to anyone, by
virtue of his use of the island for over 20 years, and he also maintained that
the island had never been part of Flisrand's land, nor had it ever become part
of Flisrand's land, asserting that Flisrand had no valid claim to any portion of
the lakebed, because it had not been permanently exposed, since it was still
covered by water for some period of time during most years. The trial court
agreed completely with Madson, holding that the meander line represented
Flisrand's boundary, so he had no claim to any land lying within the meander
line, invalidating the survey that had encompassed the portion of the lakebed
claimed by Flisrand, and concluding that Madson's rights to the unsurveyed
island were superior to those of Flisrand.
The principal points of conflict between Flisrand and Madson, as they
saw the situation, were whether or not the original GLO meander line around
the lake represented a definite boundary, restricting the extent of Flisrand's
land, and whether or not the island represented a distinct tract of land,
subject to occupation by a settler such as Madson, but as is often the case in
land rights disputes, the positions of both parties were fatally flawed,
because neither of them fully understood the interaction of all of the issues
that were in play. In order for Flisrand to prevail, he needed to convince the
Court either that the lake was non-navigable, so his land had always
extended to the center of it, or that the land he was claiming amounted to
reliction, which was no longer part of the lakebed and had become attached
to his lots by operation of law, if the lake was navigable. Madson, on the
other hand, needed to convince the Court that the island was a distinct tract
of land, in order to prevail on his own claim, but in reality, all he needed to
do to successfully defeat Flisrand's efforts to oust him from the island was to
prove that Flisrand's argument was invalid. The Court was highly cognizant
that the lake at issue was quite typical of South Dakota lakes, many of which
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undergo both long cycles and seasonal cycles, during which the water level
either rises or falls dramatically, substantially changing the size of the lake,
only to eventually return to it's former level, during a subsequent cycle.
Therefore, the Court was very much disinclined to accept the notion that the
lake was permanently shrinking or disappearing, which could have caused
the Court to declare that the lake held no value for navigation, or to decide
that that the exposed land represented reliction. In evaluating the crucial
navigability status of the lake in question, the Court noted that the fact that
the lake had been meandered by the GLO was not a conclusive indication
that it was navigable, because just as meander lines were never intended to
represent boundaries, they were likewise not intended to function as a means
of classifying the bodies of water around which they were run. Yet the Court
felt compelled to determine where the boundary of the riparian government
lots, such as those owned by Flisrand, should be set, and in view of the
magnitude of the fluctuations of this lake, the Court found itself in
agreement with the lower court that the most appropriate course of action
was to maintain the meander line as the nominal or de facto boundary of all
such lots, since no permanent high or low water lines could be definitively
located or otherwise specified from the evidence. It may well have appeared
to Flisrand that he had good reason to be optimistic about his chances of
prevailing in this controversy, based on the results of the Olson case, which
had played out 20 years earlier, as we have already observed, but his reliance
on that decision turned out to be misplaced, and he was destined to be
disappointed. In this scenario, the Court took the position that the evidence
of historic use of the lake was sufficient to overcome the presumption that
the lake was non-navigable, and that the variability of the water level made
it inappropriate to characterize the land being claimed by Flisrand as
reliction; stating that:
“Under the particular circumstances disclosed ... we are of the
view that ... legal reliction has never occurred, and that plaintiff
never has had any title to any part of ... the lake bed below the
low water mark ... reliction is ... the permanent retirement of the
waters, never to return again ... temporary subsidence of the
waters occasioned by the seasons or by periods of drought does
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not constitute reliction ... if the fisheries of the lake are of such
a character that they should be exercised in common by the
public, then the waters of such lake should be deemed public or
navigable waters ... we do not see why boating or sailing for
pleasure should not be considered navigation, as well as boating
for mere pecuniary profit ... saying that waters are public is
equivalent, in a legal sense, to saying that they are navigable ...
therefore Lake Albert is a navigable lake ... the state holds the
title to such lake bed in trust for the benefit of the public ... The
title of a riparian owner to the shore space between the high and
low water mark of navigable waters is not absolute, but is
qualified or limited by, and subject to, the rights of the public ...
no survey or note was made of an island in the lake, it was
never noted, meandered or surveyed, the United States
abandoned it's right to the island, and the title thereto was
vested in the state, along with the rest of the lake bed."
Strongly emphasizing the inherently public character of the water
itself, as opposed to focusing on the use of the land comprising the lakebed,
the Court elected to determine the navigability status of the lake on the basis
of the potential value and benefit that it held as a body of water, clearly
intent upon insuring that it remained open and available to public use. Both
of the litigants were presumably blindsided by the position thus taken by the
Court on the matter of navigability for purposes of title, but in fact it merely
foreshadowed and added momentum to a growing judicial trend, that was
already in motion by this time, toward strictly limiting private riparian
ownership, while protecting public rights in the riparian arena, and that
judicial perspective would come to dominate the twentieth century. Once the
Court decided that the lake was navigable, Flisrand could successfully assert
ownership of the land that he was claiming, below the meander line, only by
proving that reliction had taken place, so the Court's observation that the
evidence showed only that the lakebed had been temporarily exposed, rather
than permanently vacated by the water, sealed his defeat. In so holding, the
Court also clarified that the high and low water levels, which relate so
critically to riparian boundaries and riparian rights in general, are always to
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be determined in accord with ordinary conditions, not extreme conditions,
and the shore zone, lying in between those high and low water locations,
represents an area in which shared or mutual rights, both public and private,
exist. Flisrand may have mistakenly supposed that he could successfully
claim ownership of part of the lakebed based on the extreme low water
conditions, seeing that situation as an opportunity to gain land, but the Court
made it very clear that it was not inclined to view such temporary conditions
as justification for any such claim. Flisrand technically owned all of the
exposed land down to the low water mark, at any given moment, but his
ownership and use of any land below the high water mark was subject to the
rights of the public, so in effect the only area under his complete control as a
land owner was the genuinely permanent upland, lying above the meander
line. The final important issue decided here by the Court concerned the
status of the unsurveyed island, which Flisrand had mistakenly imagined that
he owned, on the erroneous basis that he owned the portion of the bed of the
non-navigable lake upon which it sat, and which Madson had also
mistakenly believed that he could acquire, as an independent portion of the
public domain, open to acquisition through occupation. Since the lake had
been deemed navigable by the Court, Flisrand's claim to the island had been
utterly vanquished, but ironically enough, the Court's ruling also effectively
negated Madson's claim to it, because the Court declined to acknowledge the
island as federal land, that had been omitted from the original survey and
was therefore open to potential settlement, as Madson had hoped. Instead,
the Court held that the failure of the GLO to either survey or plat the island
had constituted an official relinquishment of any interest in the island by the
United States, leaving it to the ownership of South Dakota, as a projection
from the state owned lakebed, even though the evidence indicated that the
island had been in existence prior to statehood, and even prior to the
subdivision of the township by the GLO. Interestingly, in taking this
position with respect to the island, rejecting the concept of omitted federal
land, the Court implicitly concluded that the GLO surveyors had the
authority to essentially disown federal land, simply by neglecting or
declining to survey it, which runs directly contrary to the analogous notion
that meander lines cannot determine navigability, since the GLO surveyors
had no authority to make any such determination, which had been accepted
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by the Court. Lake Albert still exists today, and so does at least a portion of
this historic little island, which no doubt unknown to most of it's visitors,
played a key role in shaping the development of riparian land rights in South
Dakota.
ANDERSON v RAY (1916)
The second decade of the twentieth century proved to be a period of
great significance in the history of the Court, as many important precedents
that established the future direction of land rights adjudication in South
Dakota were put into place by the Court at this time, such as the proper
location of riparian boundaries along navigable waterways, which play the
essential role of segregating public land rights from private land rights. The
conflict between public and private rights relating to shallow and highly
variable lakes takes center stage in the case we are about to review, as a
group of private land owners attempt to shut down a proposed public project
that threatens to minimize the amount of land available to them for
agricultural purposes. While the core issues of this case are exactly the same
as those which appeared in the Flisrand case, that we have just previously
reviewed, this decision of the Court clarifies and emphasizes the extent to
which the Court focuses on balancing public and private land rights, and
again shows the Court turning distinctly toward a view of navigability that
strongly favors the protection of public interests in all bodies of water, in
recognition of the fact that water is a precious commodity on the high plains.
Here we observe the Court looking to the future, and taking note of the
potential benefit to the public of a lake stabilization project, as justification
for classifying an extremely volatile lake as navigable, thereby restricting the
land rights of private riparian land owners, rather than basing the
determination of the navigability status of the lake on historic use. Although
this forward looking policy represented a bold and daring departure from the
historical navigability determination procedure, it was destined to become
entrenched as an accepted factor in navigability rulings throughout the west
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over the ensuing decades. Here we also find the Court reinforcing the
positions that it had taken on meander lines and reliction in the Flisrand
case, which was decided less than a year prior to this case, again rejecting
meander lines as anything more than presumptive boundaries, and
maintaining that reliction cannot be conclusively shown where fluctuating
water levels keep even an apparently moribund lake alive and viable as such.
In addition, the dominance of the right of the public to the shore zone along
any bodies of water that regularly recede and recover in a cyclical pattern is
implicit in the Court's decision here, even when the public use of that area of
mutual rights has the effect of keeping the ground perpetually inundated,
rendering an otherwise frequently dry area virtually useless to any private
land owners. Perhaps of most direct relevance to land surveyors, on this
occasion we watch as the Court provides definitive guidance on the manner
in which the location of the ordinary high water line of any body of water is
to be determined, governing the location of the crucial terminus of both
exclusive private land rights, and the area of public interest represented by
all navigable waterways.
Prior to 1913 - Red Lake, which is located in Brule County, covered
approximately 3700 acres, to a maximum depth of only about 4 feet,
at the time when the vicinity in which the lake is situated was
originally surveyed by the GLO and the settlement of the land
surrounding the lake began. It soon became apparent however, to the
settlers who acquired land lying around the lake, that it was highly
variable in character, undergoing short term cycles during which the
lake sometimes completely disappeared, only to refill once again, up
to it's typical maximum level, which was the level at which the lake
had evidently stood when it was meandered by the GLO. This lake
was fed by several creeks, and it had no visible outlet, yet it's behavior
suggested that an underground outlet of some kind was likely to exist
in an unknown location, since it had never been known to rise above
the meander line, even in times of serious precipitation and flooding.
For at least 3 decades subsequent to the initial settlement of the area,
this lake went through it's natural cyclical changes, dictated by both
seasonal factors and weather conditions, drying up either partially or
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completely during each summer, then refilling either partially or
completely each winter, depending on the extent of the snowfall. The
owners of the riparian properties around the lake adapted their use of
their lands to these recurring cycles, often using portions of the
lakebed for upland purposes for extended periods of time, whenever
conditions made such use possible. At an unspecified date, Anderson
became the owner of an unknown amount of the riparian land in an
unspecified location adjoining the lake. Just as many others
presumably did, he evidently made significant use of some portion of
the lakebed, lying below the meander line and directly adjoining the
upland property owned by him, for profitable agricultural purposes,
on a regular basis, as the ever changing water level of the lake
allowed, and there is no indication that any disputes over any such use
of the lakebed ever broke out between any of the riparian land owners
around the lake.
1913 - A state law was passed, evidently motivated by the existence
of many lakes demonstrating the same highly variable characteristics,
and by a desire to attempt to control the volatility of the water levels
in such lakes, which approved the use of artesian wells by county
officials as a tool with which to maintain lake levels at or near their
typical maximum levels, the apparent objective being to improve the
stability of such lakes, in the belief that this would render such bodies
of water more practical and useful. At this time, Ray, who was
apparently a county commissioner, and who presumably owned no
land in the vicinity of the lake himself, acting on behalf of the county,
proposed the construction of 4 artesian wells to support and stabilize
Red Lake. Where these wells were to be located is unknown, but
Anderson and at least some, if not all, of his fellow riparian land
owners situated around the lake objected to Ray's plan, so they filed
an action seeking to prevent the wells from being dug, on the basis
that such an application of the new law would represent a violation of
their land rights.
Anderson and his fellow upland owners argued that the body of water
in question could not be deemed navigable, due to the fact that it
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periodically disappeared completely, therefore their lands extended to the
center of the lake and they were the true owners of the lakebed, so control
over the use of the whole lakebed rightfully belonged entirely to them, and
not to the county, or the state, or the public at large. They further argued that
even if the lake were to be deemed navigable, the fact that it dried up
completely on a regular basis made all of the land comprising the lakebed
relicted land, thereby essentially suggesting that the dry condition was just
as natural and normal to the lakebed as was the wet condition. They also
maintained that allowing any artificial support for the wet condition to be
put in place, such as the construction of the proposed wells, amounted to
unjustifiable interference with their right to use their land below the meander
line in it's normal condition, which they asserted was typically the dry
condition. Ray and his legal team, which was comprised of representatives
of the state's attorney's office, arguing on behalf of the public, responded
simply that the lake at issue was indeed navigable, regardless of the extent of
it's volatile behavior, and regardless of the fact that substantial portions of
the lakebed were exposed as dry land most of the time, since the lake was
only rarely full up to the meander line, but no portion of the lakebed could
be correctly classified as relicted land. Ray also maintained that the land
rights of Anderson, and any other riparian owners around the lake, were
effectively limited to the meander line, as the nominal high water mark, and
the rights of the public to the whole of the lakebed below the meander line
were superior to any rights to that area held by the riparian owners, so the
artesian well project should be allowed to proceed, because it would result in
a more stable water level, at or near the meander line. The trial court found
the new law to be applicable to the situation, giving Ray the green light to
proceed with the artesian well project, and rejecting the claim of Anderson
and his co-plaintiffs that the project violated their rights as riparian land
owners.
Its important to keep in mind that at the time this case was tried in the
lower court, the outcome of the Flisrand case, just previously reviewed
herein, was not yet known, so Anderson and the others who were aligned
with him going into this battle did not have the benefit of the lessons that
came out of that case, which had illustrated the position of the Court on the
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very same issues that would be critical to the result in this case. Anderson no
doubt, much like Flisrand, had based his position on the Court's ruling in the
Olson case, which took place during the 1890s, and the circumstances at Red
Lake came closer to matching those of the Olson case than did the
circumstances of the Flisrand case, but in fact Anderson was in virtually the
same legal position as Flisrand, so he really never had a prayer of
succeeding, particularly since he was up against a more formidable opponent
than the one faced by Flisrand. Unlike either the Olson or Flisrand cases, the
public had a direct and present interest in this case, as a participant, which
clearly framed the issues that were before the Court in a stark manner,
pitting the public interest in the lake directly against the private interests of
the riparian plaintiffs, thereby making the decisions of the Court in this case
especially meaningful in that context. As in all riparian rights conflicts that
take place in any location where the navigability status of the waters
involved is unknown, navigability here again was the most fundamental and
overarching matter in play, forming a threshold issue that had to be
addressed before proceeding to any other issues, due to the impact it has on
all subsequent questions. The key factor here, distinguishing this scenario
from the Olson case, and aligning this controversy more closely with the
Flisrand case in the eyes of the Court, was the actual behavior and the
evident physical characteristics of the lake in question. The nameless lake
involved in the Olson case had receded never to rise again, disappearing
permanently, leaving truly dry land to be fought over, but that was not the
case with either Lake Albert, the scene of Flisrand's defeat, or with Red
Lake, which both presented distinctly cyclical behavior, and it was this
evidence that swung the judicial pendulum toward navigability, in the view
taken by the Court. Although there appeared to be even less historic
evidence of actual public use of the waters of Red Lake than there had been
relating to Lake Albert in the Flisrand case, the Court looked to the future
public value that could be expected to result from stabilizing Red Lake, and
decided the issues accordingly. Emphasizing the importance of the degree of
permanence required to legally alter the location of existing natural
boundaries, particularly where precious public rights were at stake, the Court
reiterated that temporary changes are insufficient to either eliminate
navigability, or convert an exposed lakebed into genuinely relicted land,
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again demonstrating just how intensely focused the Court was on protecting
and preserving all potentially valuable public rights, finding that:
“In this case no reliction is shown ... the water recedes ... but
this is not a permanent condition. There has been no permanent
diminution of the quantity of water that flows into the lake ...
temporary subsidence of the waters occasioned by the seasons,
or by periods of drought, does not constitute reliction ... Where
water periodically rises ... there is no reliction ... it is the low
water line, and not the meander line, that limits the plaintiff's
ownership ... a riparian proprietor takes title, not to the meander
line of a navigable lake, but to the low water mark ... being
limited and subject to the rights of the public ... the state may
use the strip between high and low water mark ... the state may
not only use it ... but may prevent it from being put to any use
that would interfere with navigation ... the adjoining owner may
occupy ... the land for any private purpose not inconsistent with
the rights of the public ... high water mark ... is to be
determined by examining ... the banks, in respect to vegetation,
as well as in respect to the nature of the soil itself ... vegetation
must be the principal test in determining the location of high
water mark ... the state has the right to raise the water ... by
either natural or artificial means ... such damage, if any, as may
result to the appellants as riparian owners, is a damage for
which they are not entitled to recover."
Having declared the lake at issue to be navigable, despite it's dramatic
fluctuations, and having denied that any portion of the lakebed could be
successfully claimed by any of the plaintiffs as relicted land, the Court again
turned to the boundary implications of these findings, which had been left
somewhat unclear in the wake of the Flisrand case. In approving the lower
court's treatment of the Flisrand case, the Court had accepted the shore zone
concept, for purposes of defining riparian boundaries, but since the lower
court had erroneously implied that it's decision was based on the notion that
a meander line could represent a riparian boundary, the approval of the
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Court had left the lingering impression that meander lines could function as
riparian boundaries. In this case however, the Court went into greater detail,
to further clarify exactly how riparian boundaries are to be defined, while
again agreeing that meander lines are presumed to correctly represent the
high water line in the absence of evidence to the contrary, indicating that a
meander line can stand as a presumptive indication of a boundary location,
but only to that extent, and that presumption was relevant to both of these
cases, in which no specific evidence showing any other boundary location
was presented by any of the litigants. Upon confirming that meander lines do
not typically represent boundaries, regardless of whether the body of water
involved is navigable or not, and verifying that their presence does not
positively indicate navigability, the Court had effectively stipulated that
meander lines should be regarded merely as evidence of the normal or
historical high water level of any given body of water, until the contrary is
shown, through proof that either erosion, submergence, accretion or reliction
have relocated the boundary in question to either a higher or lower position.
Lastly, in laying out the parameters for the interaction of the existing private
rights held by riparian owners such as Anderson and the public rights being
presently upheld, the Court sought to better illustrate it's vision of how
specific riparian boundary locations should be defined on the ground. The
Court again stated that the shore zone was an area of mutually held public
and private rights, with the high water level marking the maximum possible
extent of any public rights, making the process of defining that location in
any given case a matter of significance to all parties. Just as in the Flisrand
case, here the Court had no basis upon which to specify any deviation in the
location of the high water line from the existing GLO meander line in terms
of any dimensions, since no evidence of either a higher or lower water line
location had been brought forth by any of the litigants. Nevertheless,
resolving to provide appropriate guidance on this crucial topic as a matter of
principle, the Court formally adopted the widely honored vegetation test as
the prime component in assessing riparian boundary locations from a
physical perspective in the field, mandating that the public rights in question
extended no higher than the level at which the growth of typical upland
vegetation was limited by the presence of the water under ordinary
conditions, wherever that level might be found. In the end, Anderson had
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quite predictably learned the same lesson that Flisrand had learned, which is
that even the most volatile waters do not bar navigability, under the public
trust doctrine, which had been firmly embraced by the Court. Whether the
proposed artesian well project was ever actually carried out is unknown,
from recent aerial photos it appears that even today Red Lake remains little
more than a puddle dappled quagmire.
On the same day that the Court issued it's decision in the Anderson
case, it also produced it's first decision focusing upon the shifting Missouri
River, in the case of Maw v Bruneau. Both Maw and Bruneau held title to
riparian lands lying along a portion of the river that formed the boundary
between South Dakota and Nebraska. At the time of the GLO surveys of this
vicinity, the land of Maw had been north of the river and the land of
Bruneau had been south of the river, but the river had apparently moved
back and forth through the area in question over many decades, and as a
result neither Maw nor Bruneau evidently understood where their boundaries
were located. How long the litigants had owned their respective lands is
unknown, but Maw filed an action against Bruneau, apparently seeking to
silence a claim made by Bruneau that he owned some unspecified amount of
land lying north of the river, which was also claimed by Maw at the time of
the litigation. The basis for Bruneau's claim was evidently his belief that the
river had gradually migrated northward for a substantial distance over a
period of several decades prior to 1900, thereby washing away some, if not
all, of the land claimed by Maw, and extending Bruneau's property an
unspecified distance to the north, by means of accretion. Bruneau conceded
that the river was actually located south of it's platted location at the time of
the litigation, but he alleged that the river's current location had resulted
from an avulsive southward change in the river channel that had occurred in
1900, which therefore could not alter the northerly boundary location that
had been established prior to 1900 by several decades of accretion. Maw
acknowledged the operation and the legal effects of both accretion and
avulsion, thus Maw did not dispute the claim made by Bruneau on principle,
asserting instead that Bruneau's version of the facts was flawed and
mistaken. The river had not migrated northward gradually, Maw alleged,
instead it's northward movement had been avulsive in nature, with the result
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that Maw still owned land lying south of the river after it's northward move,
so Bruneau had never gained any land north of the platted location of the
river through accretion. The trial court decided the controversy in favor of
Bruneau, holding that Maw's property had been completely eroded away, as
claimed by Bruneau, but the Court reversed that outcome, and quieted title
to all of the land north of the river location at the time of the litigation in
Maw. In so ruling, the Court pointed out that the evidence revealed that
many trees, and stumps of trees that had been up to 50 years old when they
were cut down, existed in the area north of the river that Bruneau claimed to
have been formed by accretion within the previous 50 years, and this proved
to be fatal to Bruneau's case in the eyes of the Court. The presence of old
trees and stumps represented positive proof, the Court observed, that
Bruneau was either lying or mistaken in his belief that the river had moved
north by means of an accretive process, because if the river had done so, it
would have scoured the landscape clean of all such items, so the physical
evidence demonstrated, to the Court's satisfaction, that the Maw property
had never been fully submerged or eroded away, and none of it had accreted
to the land of Bruneau.
SAMPLE v HARTER (1916)
Just 12 days after the resolution of the Anderson and Maw cases, just
previously reviewed, the Court once again addressed a scenario in which the
presence of lakes was an instrumental factor, this time however in the
context of the law relating to the section line right-of-way. The case we are
about to review includes a very interesting and highly unusual mixture of
land rights issues, involving both fee ownership rights and easement rights,
presenting a situation in which navigability also plays a peripheral but
essential role, and it also serves to illustrate the significance of appreciating
the potential value of evidence relating to the origins of land ownership,
which can often become obscure and be overlooked, once such facts have
faded into the distant past. Perhaps the most vital lesson to be learned from
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this case is the importance of understanding that no easement can ever be
created through a conveyance made by any party, on land that is not owned
by that party, even when the party in question is the federal government.
Another case that was centered upon easement and dedication issues arising
from a simplistic early subdivision plat, the 1912 case of Atlas Lumber v
Quirk, may be worthy of note at this point. In that case, Atlas acquired two
lots in a platted subdivision and used those lots as a lumber yard, since they
were situated in close proximity to a railroad track that passed through the
subdivision. In preparing the plat however, a blank space 45 feet in width
had been left between the lots owned by Atlas and the railroad right-of-way,
which Atlas needed direct access to, in order to ship out lumber. Quirk
acquired a quitclaim deed from the party who had platted the subdivision,
allegedly conveying all of the areas lying in between the platted blocks to
Quirk, and he apparently informed Atlas that he planned to erect a building
on the 45 strip, directly in between the platted lots that were owned by Atlas
and the railroad right-of-way, which would effectively block Atlas from
accessing the railroad right-of-way for purposes of making lumber
shipments. Therefore, Atlas filed an action against Quirk, claiming that the
45 foot strip in question was in fact a dedicated public street, even though
that strip was not labeled or otherwise expressly identified as being a street
on the subdivision plat, appearing only as a blank space thereupon, so Quirk
had no right to erect a building on the disputed strip. The Court reversed a
lower court decision in favor of Quirk, agreeing with Atlas that the
unlabeled strip was a dedicated public street, which was covered by the
dedication statement that appeared on the face of the plat, because that strip
could not logically be understood to represent anything other than a public
street, since the plat showed other public streets and alleys opening onto it.
The Court therefore rejected Quirk's claim that he had the right to build on
the strip, thereby rendering the quitclaim deed to Quirk essentially
worthless, and upholding the powerful rule that a grantor owns nothing that
he failed to expressly reserve when platting and conveying his land.
1857 - The Winona & St. Peter Railroad was created, and through an
Act of Congress the railroad was granted all of the odd numbered
sections in a certain group of townships that had yet to be surveyed by
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the GLO.
1858 to 1879 - During this period, all of the townships containing the
aforementioned railroad land were apparently surveyed and platted by
the GLO, and the settlement of those townships located in the Dakota
Territory commenced. Altamont Township in Deuel County was
among those included in this group, and it contained several bodies of
water known as the Coteau Lakes, which were situated in Sections 20,
21, 28 & 29.
1880 to 1902 - Altamont Township apparently grew in the normal
fashion, and the Coteau Lakes came into typical use by the public.
Whether or not any of the land near the lakes in Sections 20 & 28 was
occupied or patented during this period is unknown, but the railroad
land in Sections 21 & 29 was evidently never put to any use by the
railroad and remained vacant. At an unspecified date, a section line
road was built and put into public use, running along the south side of
Sections 28 & 29, and the public began accessing the south end of the
southernmost lake, which was about a quarter mile north of the
southeast corner of Section 29, by turning off the section line road
near that point and travelling northward to reach the water. Another
section line road was built running along the north side of Section 20
& 21 at an unspecified time, but there was no indication that anyone
ever accessed the lakes from this road, since the north end of the
northernmost lake lay more than half a mile south of this road and the
intervening terrain was more rugged than the terrain south of the
lakes. No other portions of the section line right-of-way were used for
purposes of travel to these lakes, and no other public roads existed
anywhere in the two mile wide area lying between these two public
roads.
1903 to 1915 - At an unspecified date, Sample acquired the land lying
in the south half of Sections 28 & 29, between the southerly section
line road and the lakes. He also acquired the land in the southwest
quarter of Section 21 that lay directly north of the northernmost lake,
but he never acquired any land in Section 20, which apparently
remained unoccupied and undeveloped. Whether or not the public
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continued to access the lakes from some other direction after Sample
acquired the lands over which the public had been travelling to reach
them is unknown, but there is no indication that anyone ever
trespassed on his land, and there were no conflicts over access to the
lakes during this period. At an unspecified date, presumably near the
end of this period, Harter, who was a township supervisor, proposed
the construction of two section line roads crossing the lands owned by
Sample. One of these roads was proposed to run south from the
northeast corner of Section 20, along the east line of that section, to
the north edge of the north lake, and the other road was proposed to
run north from the southeast corner of Section 29, along the east line
of that section, to the south edge of the south lake. Sample objected to
this proposal, so he filed an action against Harter, seeking to prevent
these public roads from being built across his lands.
Sample argued that the proposed roads were unnecessary, impractical,
and would be of no value to the public, since it was impossible to build one
continuous road along the section lines in question, that would serve to
connect the two existing section line roads, due to the presence of the water.
He asserted that no dead end road could be considered practical or beneficial
enough to the public to justify opening and improving a section line right-ofway for that purpose, and the public had no right to cross his land solely for
the purpose of reaching the lakes, so Harter's proposal should be denied. He
further argued that he had terminated any previous public access to the lakes
that may have taken place on his land, prior to his acquisition of it, and that
even when that access had been made prior to his arrival, the public had
never followed any one specific route to reach the lakes, they had used many
constantly varying paths, so no right-of-way had ever been created anywhere
on his lands by means of prescription. Harter argued that Sample had no
right to prevent public use of any portion of the section line right-of-way
crossing his lands, and he asserted that rather than making the section line
right-of-way less valuable, or useless to the public, as Sample maintained,
the presence of the lakes actually made the use of the proposed routes more
valuable to the public, because the public had the right to free access to the
lakes, so the construction of both of the proposed roads was completely
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justified and entirely legal. The trial court found that the lakes were of value
to the public, and public access to them was a legitimate basis for the road
construction that had been proposed by Harter, so the roads in question
could be built and put into use as proposed, and Sample had no right to
block their construction or their use.
Interestingly, just 6 years earlier in 1910, in the Troeh case, previously
reviewed herein, the Court had commented that a public road should never
be presumed to have been intended to form a dead end or cul-de-sac, unless
such an intention was clearly manifested, and the Court had taken that
position as a means of justifying or explaining it's decision in that case that
the alley in question was one continuous public thoroughfare, despite being
ambiguously described in fragments. Sample or the members of his legal
team appear to have taken note of the Court's position stated in the Troeh
case, which seemed to hint or suggest that the Court might not approve the
creation of a public road that did not serve to connect any existing roads, and
Sample chose to make that notion a feature of his effort to prevent the
section line roads that were proposed here from being built on his land. Not
surprisingly however, the Court found this position entirely unacceptable
and swept it aside with little consideration, based on the fact that there is
nothing anywhere in the law pertaining to section line roadways which
stipulates that a section line right-of-way running along a fragmentary
section line cannot be put into use as a public road. Unquestionably, the
Court observed, the proposed roadways would serve a legitimate public
purpose, increasing the accessibility of the lakes in question, the public value
of which had already been amply demonstrated by the fact that the public
had been making use of them on a consistent basis for well over 3 decades
by the time this case was tried. Presumably having noted the results of the
Flisrand and Anderson cases, concerning the issue of navigability, Sample
and his legal team evidently recognized that the Court would undoubtedly
deem the group of lakes involved in this matter to be navigable, under the
broad umbrella of navigability that had been established by the Court, based
on the historic use of the lakes by the public, so they never even attempted to
argue that the lakes at issue here were non-navigable or private in character.
Having accepted the concept that the lakes represented a source of value to
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the public, the Court concluded that the idea of accessing them by means of
the section line right-of-way, as had been proposed by Harter, was perfectly
valid in principle, the only potential obstacle being the terrain itself, and the
topography, the Court decided from the evidence, was not so severe or
impassible as to prevent the construction of useful roadways following the
section lines in question all the way to the shores of these lakes, from both
the north and the south. Just as in the Flisrand case however, each of the
litigants had initially come into this battle apparently unaware of at least one
important factor, and this would lead to another outcome with which neither
party would be fully satisfied. Like Anderson, in the case just previously
reviewed, Sample only learned of the Court's stance strongly favoring
navigability, which effectively eviscerated his position, well after his legal
assault on these proposed roads had been launched, but Harter also had a
surprise coming, since he had apparently just assumed that literally every
section line represents a right-of-way, evidently not realizing the
significance of the railroad grant, which did not escape the Court:
"Upon the question of practicability, it was shown that ... these
section lines are practicable for public uses. This brings us to
the second and more difficult branch of the case ... after
sections 21 and 29 had been granted to the said railroad
company, these two sections were not public lands ... The
government had already divested itself of title to these two
sections, and it could not burden them with a right-of-way for
highways ... it follows that defendants were not authorized ... to
appropriate any portion of these two sections for highway
purposes ... an attempt was made to show the establishment of a
road by prescription ... travel appears to have turned off from
the east and west road at or about the section corner, it does not
appear to have followed any defined roadway from that point to
the south side of the lake ... and it does not appear that anyone
... followed the section line to the lake ... people traveling back
and forth ... followed the route that was most convenient at the
particular time ... the evidence is not sufficient to show the
establishment of a highway ... but ... the railroad grant above
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referred to does not affect sections 20 or 28 ... a strip of land 33
feet in width ... on the east side of section 20 and ... on the west
side of section 28 ... may be opened by respondents for that
purpose."
Although Sample had been utterly vanquished in his futile effort to
convince the Court that access to the lakes at issue was not an appropriate
use for a section line right-of-way, he did greatly benefit from the fact that
part of his land had been granted away by the United States in 1857, prior to
the formulation of the section line right-of-way concept, and even prior to
the origination of the concept of a public right-of-way over the public
domain, which had been set forth by RS 2477 in 1866. All of Sample's land
in Sections 21 and 29, the Court acknowledged, was free of any public
burden, under the section line right-of-way statutes, because no grantor, even
including the United States, can ever place the burden of an easement on any
land that is no longer owned by that grantor, so the laws of 1866 and 1871,
relating to the section line right-of-way, had no impact on these two
sections, since they had already been removed from the control of the United
States in 1857. The fact that the sections that had been disposed by the
United States in 1857 did not yet exist at that point in time, having not yet
been surveyed on the ground or platted by the GLO, was irrelevant in the
eyes of the Court, because the railroad grant necessarily carried the legal
implication that the GLO would subsequently subdivide and plat all of the
relevant townships, and the railroad would become the owner of all of the
odd numbered sections therein at the moment those sections came into legal
existence. Had Section 28 also been conveyed by the United States prior to
1866, no public right-of-way would have existed anywhere on Sample's
lands at all, and he would have been fully victorious in this controversy, but
Section 28, the Court held, was subject to the section line right-of-way, since
it had evidently not been patented until after 1866. This situation obviously
raised a subsequent question, which was to what extent the land in Section
28 was burdened by the section line right-of-way, so the Court had to
determine whether the full statutory 66 foot width of the section line rightof-way should be maintained in such situations, by shifting all of it onto the
even numbered section, or whether the section line right-of-way should
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simply be reduced to half of it's intended width under such circumstances.
To that end, the Court gave serious consideration to the fact that 66 feet had
clearly been the intended width of all section line right-of-way under the
law, but decided that width was merely a secondary factor, which was
controlled by the primary intention to set the boundaries of the section line
right-of-way 33 feet from every section line that was qualified to support
such public rights, thereby confirming the existence of a public right-of-way
over only the west 33 feet of Sample's land in Section 28. The Court
therefore proceeded to uphold the ruling of the lower court on it's merits in
all respects, while clarifying however, that in terms of actual location, this
decision was applicable only to the existing section line right-of-way in
Section 28, so if the proposed roadway required a right-of-way 66 feet in
width, then Sample would have to be compensated for any land beyond the
west 33 feet of Section 28, in either direction, that was needed for that
purpose. Its also worthy of note that the Court, as quoted above, here took
the position that the creation of a prescriptive right-of-way or easement
cannot be accomplished by the mere crossing of vacant land, over a
multitude of varying paths, trails or tracks, since such use is inherently
transient in character, leaving little or no trace, therefore failing to present or
support the critical element of notice of ongoing use of the land, and thereby
creating no permanent rights to maintain such use.
Later in 1916, another case in which the principle of notice proved to
be decisive was ruled upon by the Court, in Caldwell v Pierson. In that case,
South Dakota issued a contract for deed in 1901, covering a quarter quarter
that was situated in a state school section, and Caldwell became the assignee
of that contract in 1907. Caldwell occupied and farmed the quarter quarter at
issue, but unknown to him delinquent taxes were owed on the property, and
as a result the quarter quarter was conveyed to Foster in 1908 at a tax sale. A
state patent was subsequently issued to Foster, covering the quarter quarter,
and he then conveyed it to Pierson in 1912. When Caldwell discovered what
had happened, he filed an action against Pierson, claiming that both the tax
deed and the patent represented unauthorized violations of his prior rights to
the quarter quarter, and those documents had been wrongly issued in
derogation of his rights, so they should be deemed to be legally void. Pierson
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countered with the argument that Caldwell had never recorded his contract
for deed, claiming to be an innocent purchaser of the quarter quarter, without
any means of notice that Caldwell had any prior right to the land in question.
The trial court held that the patent was indeed void, because the statute
enabling the state to issue such a patent, on the basis of a tax deed, was
unconstitutional. The Court agreed that the statute providing for the
patenting of state school land that had been acquired through tax
proceedings was unconstitutional, because it foreclosed and failed to protect
the rights of parties such as Caldwell, who may have been victimized by
deficient tax delinquency proceedings, during which parties such as
Caldwell may not have been given adequate notice, thereby illegally
depriving them of their land without due process of law. In addition, the
Court observed, citing the Betts case of 1890 and the Huffman case of 1912,
both previously referenced herein, the fact that Caldwell had been physically
present on the land in controversy since 1907, and both he and his tenant had
openly and consistently utilized the quarter quarter, was fully sufficient to
dispose of the claim made by Pierson that he was a bona fide purchaser
without notice. The occupation and use of the disputed property by Caldwell
and his tenant, the Court stated, supplied Pierson and all others allegedly
having any interest in the quarter quarter with notice of the existence of
Caldwell's rights to that property, just as completely as if Caldwell had
recorded the document assigning the contract for deed to him. The Court
thus demonstrated once again that the concept of inquiry notice has the
power to utterly negate the value of any land acquisition, if the evidence
indicates that the grantee relied solely upon documentation of record, and
voluntarily closed his eyes to the visible existing physical circumstances
involving the land being acquired.
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INGALLS v GUNDERSON (1916)
Up to this point in time, as our review of many cases decided by the
Court has shown, boundary disputes were resolved on the basis of physical
and testimonial evidence of original corners and lines, which was quite
feasible during the era when only a moderate amount of time had passed
since the completion of the original surveys, and adverse possession was
simply a means of suppressing and silencing stale and inferior titles, in those
instances when boundaries were undisputed and were not in contention. This
clear division between title and boundary issues was destined to end
however, as the passage of time eventually made it necessary or appropriate,
in the eyes of the Court, to allow adverse possession to be utilized as a
means of judicial boundary control, in order to protect the stability of long
standing productive possession of unverifiable origin, in the absence of clear
first hand evidence of original boundary locations, and the case we are about
to review marks the Court's key first step in that direction. This same judicial
transition, effectively merging the treatment of boundary and title issues, has
taken place in every state at one time or another, as all modern courts
gradually adopted established possession of land as a supplemental form of
boundary evidence, to be judicially relied upon as such, in the absence of
survey evidence or direct testimony providing definitive support or proof of
original monument locations. From the Court's perspective, the main benefit
that was derived from allowing adverse possession to play a role in the
resolution of boundary disputes was the fact that doing so enabled the Court
to dismiss and thereby negate the disruptive impact of the early resurveys,
which had proven to be chronically erroneous, without any detailed
consideration, by simply invoking the statute of limitations, rendering all
such evidence moot, and in the end this option proved to be irresistibly
attractive to the courts of every state. The Court's rejection in this case of the
concept that mistaken notions or ideas regarding boundary locations can
prevent adverse possession was the harbinger of this judicial broadening of
the use of the doctrine of adverse possession, although there was in fact no
true necessity for the outcome of this particular case to be governed by
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adverse possession, as it could equally well have been resolved on the basis
of the original boundary evidence that was presented. By this time however,
the Court had become acutely aware of the potentially dramatic negative
consequences that can result when an improper resurvey is left adrift to
influence later generations, as happened here, and it was this knowledge
gained from the Hoekman, Mills and Coulter cases, and earlier cases that we
have reviewed, which motivated the Court to finally consent to employ
adverse possession as a tool, with which to conclusively dispose of bogus
claims founded upon problematic resurveys. Surveyors often correctly
maintain that adverse possession should not be treated as a means of
boundary resolution, without recognizing the irony in that position, since as
this case shows, the very reason that the Court originally embraced such a
role for adverse possession was to combat resurveys that had been executed
on a fundamentally mistaken basis, and to fill the void that had been left by
the passing of the era during which original survey evidence was readily
available.
1867 - The father of Gunderson settled upon the west half of the
northwest quarter of an unspecified section in an unspecified township
in Minnehaha County, which had evidently been just recently
surveyed and platted by the GLO prior to his arrival. Gunderson's
father found all of the original monuments defining the location of the
northwest quarter completely intact and undisturbed, the mounds and
pits being clearly visible, and the GLO stakes still being upright in the
center of each mound. He then erected a house and some typical farm
buildings on the northerly portion of his land, and he began using the
rest of it as cropland in the typical manner. The tract thus acquired by
Gunderson's father was subsequently patented to him at an
unspecified date.
1869 - As additional settlers arrived and began using the lands
adjoining the Gunderson property, Gunderson's father decided to
fence his land, based on the original monuments that he had found.
Apparently no disputes arose over the location of Gunderson's fence at
this time, and the settlers of the adjoining lands were evidently
satisfied that he had enclosed the proper location.
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1870 to 1890 - During this period all of the land in the vicinity of the
Gunderson property was apparently patented and put into productive
use in the typical manner by the various settlers who had occupied it
and their successors, and there is no indication that any boundary
disputes occurred. At an unspecified date during this period,
Gunderson's father conveyed his land to his son, so Gunderson
became the owner of the family farm.
1891 - A surveyor arrived in the area and when he encountered
Gunderson the two men engaged in a conversation. The surveyor
informed Gunderson that he had been employed by the township to
perform a complete resurvey of the township and he was looking for
section corners, so Gunderson showed the surveyor the corners of his
land, and presumably he also told the surveyor that his father had seen
and used the original GLO section corners and quarter corners when
he had fenced their farm over 20 years earlier. How old Gunderson
was at this time is unknown however, so he may or may not have ever
seen the original corners, or had any personal knowledge of their
locations, beyond what he had been told by his father. Whether or not
any physical evidence of the original monuments that had been found
by Gunderson's father still remained visible at this time is also
unknown, but the surveyor was evidently unimpressed with the
evidence provided to him by Gunderson, so he decided not to accept
any of the established corner locations in this area as boundary
evidence.
1893 - Since the fence along the east side of his property was getting
old, Gunderson rebuilt it, in the same location where it had been
originally constructed by his father 24 years before. At an unspecified
date, Gunderson had also acquired some additional property lying to
the southeast of his father's former tract, and he fenced that area at this
time as well. Whether or not Gunderson was aware that the surveyor
who was currently conducting the resurvey of the township had
rejected the boundaries that had been fenced by his father in 1869 is
unknown. Who owned the northeast quarter of the northwest quarter
at this time is also unknown, but no protest was raised by anyone, so
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the original fence location continued to serve as the functional east
boundary of the Gunderson farm, after being thus rebuilt.
1895 - The same surveyor who had visited Gunderson in 1891
completed his resurvey of the township in question, and at this time he
apparently set new section and quarter monuments throughout the
township, creating large boundary discrepancies, and purporting to
indicate the presence of major boundary issues, in the area that had
been settled by Gunderson and his neighbors. The section lines
marked at this time lay far to the west and somewhat to the south of
the lines that had been accepted and adopted by the settlers, in fact the
resurvey shifted all of the boundary lines in this area so far to the west
that all of the buildings that had been erected by Gunderson's father
were actually located in the northeast quarter of the northwest quarter,
per the resurvey, and Gunderson's east fence was located far inside the
northeast quarter of the northwest quarter.
1896 to 1912 - Since the Court had made it known, during the 1890s
as we have seen, that resurveys of an independent nature, which
neglect to honor and utilize original survey evidence, such as the one
that had been performed here, cannot be legally authorized and do not
control, Gunderson and the other residents of this township apparently
just ignored the results of the resurvey that had been done in 1895,
and the township evidently also discarded it and made no effort to
adopt the relocated section lines. During this period therefore,
Gunderson and his neighbors continued to occupy and use their lands
just as they always had, simply disregarding the monuments that had
been set, and the lines that had been marked, during the resurvey. At
an unspecified time however, presumably toward the end of this
period, Ingalls acquired the northerly portion of the northeast quarter
of the northwest quarter, and he decided to attempt to assert a claim to
the portion of the Gunderson farm that was part of his quarter quarter,
according to the boundaries that had been marked during the resurvey.
1913 - Although the fence that served as the line of physical division
between the properties owned by Ingalls and Gunderson had remained
in place for over 40 years by this time, Ingalls, who was presumably a
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newcomer to the area, unaware of the area's history, upon learning
that the resurveyed location of their boundary was farther to the west,
insisted that he owned most of the land west of Gunderson's east
fence, land that had always been in the possession of the Gunderson
family. Gunderson refused to concede the area in question to Ingalls
however, so Ingalls filed an action against him, seeking to have
Gunderson compelled to relinquish the land lying east of the relocated
sixteenth line to Ingalls, and to require Gunderson to accept that line
as their mutual boundary henceforward.
Ingalls argued that the sixteenth line dividing the east and west halves
of the northwest quarter had always been the only true boundary between the
properties of the litigants, and that line had been properly located during the
1895 resurvey, so the fence that had been rebuilt by Gunderson, and
Gunderson's home and other buildings, had actually never been located in
the west half of the northwest quarter, and most of the land used and
occupied by the Gundersons was actually owned by Ingalls and his
predecessors. Ingalls further maintained that since his action was filed to
resolve a boundary location issue, and there was no conflict between the
titles held by the parties, Gunderson could not obtain the benefit of adverse
possession, because adverse possession could not be applied to resolve
boundary disputes, so the fact that Gunderson had long been in possession of
the area at issue, on the basis of a mistake regarding the sixteenth line
location, was irrelevant and could not prevent Ingalls from claiming all of
the land lying east of the true boundary location. Gunderson argued that his
father had correctly located and fenced the boundaries of his property in
1869, based on it's originally surveyed location, and the 1895 resurvey was
simply incorrect and invalid, therefore no boundary dispute existed, since
the sixteenth line location asserted by Ingalls was plainly illegitimate and
groundless. Gunderson further maintained however, that the controversy
created by Ingalls should be treated and resolved as a title conflict, since the
possession of all of the land that had been fenced by his father and used by
his family was genuinely adverse, because they had openly claimed
ownership of it at all times, in direct contradiction to the resurvey, so title
should be quieted in him, up to his east fence, regardless of where the
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sixteenth line was really located. The trial judge agreed that this matter could
be properly resolved as a title conflict, and he instructed the jury
accordingly, upon which the jury found that the boundary location in dispute
had been properly located and marked during the resurvey, but also found
that the possession of Gunderson had been adverse, so the trial court quieted
title in Gunderson up to the fence, as had been requested by him, on the
basis of adverse possession.
As we have already repeatedly observed in our review of the many
PLSS boundary cases decided by the Court prior to this time, it was not
uncommon for land surveyors during the early days to fundamentally
misunderstand their proper role with respect to original boundary evidence,
and to set out with the deliberate intention of performing what amounted to
corrective surveys, convinced that rectifying errors made by the GLO
surveyors in executing the original surveys was their proper objective. Even
many county surveyors evidently conducted their work in this manner, and
they passed on their views, by training their deputy surveyors to adopt this
highly independent approach, emphasizing the supreme importance of the
mastery of measurement science, in the apparent belief that every surveyor
should strive to make the most precise measurements possible, with the
ultimate goal of eliminating all measurement errors found to have been made
in the past. Following this severely misguided path, great havoc was
wrought upon many unfortunate settlers, and extensive damage was done to
the security and stability of their land rights, as township officials who were
ignorant of boundary law employed such surveyors to resurvey entire
townships, under the mistaken concept that original survey evidence could
simply be swept aside, if the original monumentation was found to have
been established with poor precision, and numerous townships were
remonumented without justification on this basis. In most instances, such
erroneous resurveys never reached the Court, if they were disputed at all, in
part because the entrymen typically lacked the resources to successfully
pursue costly litigation, and in part due to the fact that the typical entryman
was uneducated and dared not challenge the knowledge and decisions of the
county surveyors, so most of them simply accepted their fate, and
acquiesced to the relocation of their boundaries, whether such relocation was
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justified or not. The impact of such ill advised survey procedures, neglecting
to respect original survey evidence, and intentionally departing from the
footsteps of the original surveyors, upon the innocent land owners, and on
the harmony of their communities, did not escape the Court however, so the
Court came riding to the rescue of the entrymen and their successors, by
upholding their right to rely fully on the GLO surveys, whenever the
opportunity to do so presented itself, as numerous cases that we have already
reviewed illustrate. With the passage of time however, it naturally became
increasingly difficult to assess the validity of potentially original boundary
evidence, so the Court gradually became increasingly inclined to be open to
alternative means of protecting established boundaries, and when this case
arrived before the Court, a critical tipping point had finally been reached.
The trial judge, a highly respected jurist who had handled the conclusion of
the seminal Randall case during the 1890s, and who had dealt with countless
boundary disputes of this very kind since then, had seen fit to accept and
adopt the argument made by Gunderson that adverse possession should be
allowed to operate as a means of resolving such boundary disputes, because
such controversies are in effect partial title conflicts, that have an impact on
the title of the litigants, and result in title being quieted up to a specific
location. Although fully cognizant that boundary resolution was not among
the originally intended applications of adverse possession, the Court elected
to approve the crucial jury instructions given by the trial judge, on the
following basis:
“This is an action brought to determine adverse claims ...
defendant claims title both because of what he claims to be the
true location of the government corners, and also because of his
alleged adverse possession ... the township authorities had the
township resurveyed. The surveyor treated the mounds at the
northwest and northeast corners of the quarter as lost, and
located the northwest corner some 50 rods west ... and the
northeast corner some 30 rods west ... of the points claimed by
defendant ... The jury found in favor of the plaintiff on the
question of the location of the government mounds, but found
in favor of the defendant on the question of adverse possession
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... defendant had knowledge of the fact of this resurvey ... in
order for defendant to prevail, the jury must find that he
occupied the land in dispute with an intent to claim up to the
line claimed by him, whether it was the true line or was not the
true line ... the mere fact that possession may originate in a
mistake as to the location of the true boundary will not prevent
the running of the statute and the acquiring of title by adverse
possession, if the party in possession intends to claim the land
to the line occupied by him as his own ... defendant believed the
corners testified to by him to be the government mounds,
certainly a clear intent to claim title to the fences is shown ... If
after 1891 he realized that he was mistaken, then certainly his
possession became adverse ... under such resurvey the land in
dispute was located outside of the descriptions contained in his
deeds ... There could be no clearer or more satisfactory
evidence that he intended to claim this land in dispute whether
the lines claimed by him were the true lines or were not the true
lines. The facts of this case established title by adverse
possession."
The outcome of this case was really unremarkable, in fact it was
completely predictable under the circumstances, because there was simply
no way the Court was going to allow Ingalls to force Gunderson off the land
that his family had productively occupied in complete good faith for several
decades. What makes this case noteworthy is the fact that it very clearly and
poignantly displays the critical factors that caused the Court to finally
abandon it's efforts to treat boundary and title issues separately, and it thus
marks the introduction of the era of modern adverse possession, as a means
of judicial boundary resolution. Ingalls was very obviously acting purely in
his own interest, and was egregiously unjustified in his attempt to arbitrarily
force the Gundersons off their land by asserting that the illegitimate 1895
resurvey, which had never been adopted or utilized, represented the best
evidence of the true location of the boundary in question, yet he was
technically correct that the issue in play was purely in the nature of a
boundary dispute, and was not a title conflict in any sense. Ingalls, like most
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such opportunists, including some who routinely filed such claims, operating
as land sharks, had pounced upon this situation, realizing that if he could
successfully maintain that Gunderson's possession amounted to a mere
boundary mistake, then time would function as the ally of Ingalls, because
time had made it difficult, if not impossible, for Gunderson to prove the
original boundary location, by diminishing or eliminating most or all of the
direct evidence of the original survey of the area at issue. Gunderson, on the
other hand, was clearly within the class of litigants that the Court had always
quite strongly protected, being the innocent successor of an original
entryman, who had clearly made a good faith effort to take possession of the
appropriate location, based on the original monumentation that he had found
decades earlier, at a time when the authenticity of that monumentation could
not be questioned. Yet Gunderson was in a weak position, the Court
realized, because due to the passage of time, the only basis upon which he
could support his boundary location claim was his own testimony regarding
what his father had done, so the Court recognized that the time had come to
allow adverse possession to be extended to partial title claims, rather than
being limited to complete title claims involving entire properties, to which it
had historically been limited. The Court therefore agreed with the lower
court's decision to treat all adverse claims involving the ownership of real
property, including boundary disputes, as being equivalent in effect to quiet
title actions, approving the jury instructions that had been given by the trial
judge, and upholding the lower court's ruling in favor of Gunderson, thereby
confirming that both legal and equitable factors can control boundaries, and
abandoning the stance it had formerly adhered to, that claims of title based
on possession can have no impact upon boundary resolution. In so holding,
the Court had joined the great majority of states nationwide, in
acknowledging that the open and visible use of land can represent
compelling and decisive evidence of intent to claim title up to a given
location, which in turn can represent conclusive boundary location evidence,
within the purview and operation of the applicable statutes of limitation,
making adverse possession a legal surrogate in effect, for direct physical
evidence of an original survey, once such evidence has become obscured or
extinguished, by the passage of time.
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A strip of land varying from 200 to 300 feet in width, lying between
the plat of Yankton and the Missouri River would become the subject of the
next adverse possession case to be addressed by the Court, in Lusk v City of
Yankton in 1918. Lusk obtained a deed in 1915, purporting to convey the
strip in question, which had previously been quitclaimed by a descendant of
the party who had been the original patentee of all of the land from which
the city had been platted. When the strip in controversy was deeded to Lusk,
Yankton had already been using most, if not all, of the disputed area as a
quarry, from which sand and gravel was being extracted by the city and it's
contractors on a regular basis, for several years. Lusk and his business
partners apparently demanded that Yankton turn over control of the quarry
to them, and the city refused, leading Lusk to file an action against the city,
seeking to quiet his title to the entire strip, which was approximately the
length of 3 city blocks. The Court fully upheld a lower court ruling that
Yankton had acquired the entire unplatted area by virtue of adverse
possession, emphasizing that Lusk had acquired nothing, and flatly rejecting
Lusk's assertion that the city, as a successful adverse possessor, should be
required to compensate him for his loss:
“The respondent city ... perfected and acquired full and
complete title to this land by adverse possession ... the
contention is made that respondent, as a matter of equity,
should reimburse plantiffs ... it would be highly inequitable to
do so ... respondent acquired title by fully ripened adverse
possession ... appellants are not innocent parties without notice
of respondent's rights."
In so deciding, the Court established some important precedents
relating to adverse possession, that would often be applied in future cases,
such as the concept enumerated above, that a party who acquires land which
has already been adversely possessed acquires nothing, so he cannot
successfully demand any compensation from the adverse possessor, because
adverse possession vests title in the possessor immediately, upon completion
of the statutory period, without any need for adjudication, which serves only
to make the adversely acquired title a matter of record. The Court also again
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reiterated the frequently honored rule that any buyer of land, such as Lusk,
who is placed upon inquiry notice, either by a physical presence on the land
being acquired, or by the presence of a quitclaim deed in the chain of title,
does not qualify for judicial protection as an innocent purchaser of land.
While this case demonstrates the originally intended purpose of adverse
possession, which was to transfer title and ownership of the entirety of a
given tract to the occupying party, it would not be long at all before the
Court would again turn to adverse possession as a remedy in the context of a
boundary dispute.
LEHMAN v SMITH (1918)
PLSS boundaries are once again the central topic, in the case we are
about to review, which focuses upon the evidence required to support an
original corner location, after the physical evidence of an original GLO
monument has become degraded and obscure, to the extent that the question
of whether the original location has truly been lost or is merely obliterated
arises. In this instance, the original monument at issue, marking a typical
quarter section corner, was evidently so weathered or otherwise diminished
in visibility that it was either entirely overlooked or not recognized as an
authentic original monument by a retracement surveyor just 27 years after it
had been set. This was undoubtedly not an unusual situation, since the nature
of the original monuments typically set by the GLO surveyors working in
what would become South Dakota, being mounds and pits with wooden
stakes, were obviously highly susceptible to being plowed out of existence
by settlers who had little or no understanding of the importance of
preserving such monuments. While an even greater challenge faces
surveyors attempting to locate original GLO survey evidence today, due to
the passage of a far greater amount of time since the execution of the
original surveys, the principle dictating that any such original evidence as
may yet be discovered is of controlling value remains intact and fully
applicable of course, making a truly diligent effort to locate all such
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evidence mandatory, as the highest and most significant function of every
retracement surveyor. Whether the surveyor in this case ever even looked for
the missing quarter corner in it's original location is unknown, but most
importantly he failed to seek out testimonial evidence, which would have
guided him to the obscured original location, and would have assured him
that whatever remnants of the original monument were still there,
indistinguishable though they might be, were once part of a genuine
monumented corner location. Thus the fundamental lesson of this case is
that the burden of proof always rests upon the surveyor who elects to declare
that any given monument is truly lost, which in turn clearly points to the fact
that the surveyor, as a gatherer of evidence, must first and foremost set out
to recover and preserve all historical evidence, rather than disregarding the
potential presence of such legitimate boundary evidence and resorting too
quickly to measurement based solutions. In addition to providing that highly
valuable lesson, this case also marks the Court's first definitive statement on
the topic of acquiescence, as a factor in boundary determination, and here
we look on as the Court takes the fateful step of associating acquiescence
with adverse possession, rather than categorizing it as an independent form
of boundary resolution, or treating as a supporting element in the practical
location of boundaries, as many other states have done, most notably Iowa,
Michigan and Wisconsin. This decision on the meaning of acquiescence
would go on to be cited by the Court in numerous subsequent boundary
cases, eventually consigning the concept of acquiescence to a relatively
insignificant role in South Dakota boundary law.
1873 - A certain township in Davison County was surveyed and
platted by the GLO and the settlement of the area began.
1885 - By this time, settlers had begun to populate the southwesterly
portion of this particular township. The north half of Section 33 was
first placed under cultivation at this time, and some trees were planted
on or near the north line of that section by the original settlers. A road
also came into use, running on or near the north line of that section,
but whether or not the south half of Section 28 had yet been occupied
is unknown. The original GLO monuments marking the line between
Sections 28 and 33 were evidently still in place, according to those
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parties who were already familiar with the area at this time.
1900 - Tiffany, who had acquired the southwest quarter of Section 28
at an unspecified time, wanted to fence his quarter, but apparently he
could not find the south quarter corner of Section 28, so he ordered a
survey, and that corner was reset at this time, directly on the line
running between the existing southerly corners of Section 28, the
locations of which were never disputed. Tiffany then built a fence
along the entire south line of his quarter, at least part of which was
located in the existing roadway, which apparently meandered along
the section line and was only seldom used. No one objected to the
construction of this fence, including Lehman, who had acquired the
north half of Section 33 at an unspecified time, and the location of the
apparently unimproved roadway just shifted slightly, as traffic simply
passed along the south side of Tiffany's fence. However, Lehman did
expressly inform Tiffany that the original quarter corner between
Sections 28 & 33 had actually been located about 100 north of
Tiffany's southeast fence corner, and Lehman told Tiffany that
although he would agree to allow Tiffany's fence to remain where
Tiffany had built it, Lehman still claimed to own all of the land south
of that original quarter corner location, including the portion of the
northwest quarter of Section 33 that Tiffany had fenced in. How much
time had passed between the construction of the fence by Tiffany and
this conversation that he had with Lehman is unknown, but Tiffany
evidently understood and accepted what Lehman had told him, since
he never erected any further improvements in the area claimed by
Lehman, apparently using that area only as cropland or pasture.
1906 - Lehman built a fence, apparently running along the full length
of the north side of Section 33, but he did not build it in the location
where he believed the original section line to be, which was north of
the road, instead he built it along the south side of the road, but again
he informed Tiffany that he realized that neither of the two fences
were located on the section line, and he still claimed to own all of the
land lying south of that original section line.
1914 - Tiffany apparently conveyed the southwest quarter of Section
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28 to Smith, and for unknown reasons, Lehman decided at this time
that he was no longer willing to allow the fence that had been built by
Tiffany to remain in it's current location, so he asked Smith to relocate
it to the original section line, but Smith did not agree with Lehman's
opinion regarding the location of the quarter corner in question, so he
refused to move the fence. Lehman therefore filed an action against
Smith, seeking to have the original location of the quarter corner
adjudicated, and to have Smith compelled to move his fence north to
the original section line.
Lehman argued that he had seen the original quarter corner between
Sections 28 & 33 himself, and he had always known exactly where it was
located, so that corner had never been lost, and it had been incorrectly
treated as lost and improperly relocated during the resurvey that had been
done in 1900, therefore the original section line location, and not the straight
section line that had been erroneously surveyed, still marked his north
boundary. He further argued that he had never agreed or stated that the
straight section line was correct, or that it was acceptable to him, and he had
openly and consistently maintained that his ownership extended north,
beyond the road and beyond the fence built by Tiffany, to the original
section line location, so the fact that he had allowed some of his land to be
used by Tiffany, and some of it to be used as a roadway, was not binding
upon him, and he still had the right to claim ownership of the entirety of
Section 33. Smith argued that the evidence presented by Lehman relating to
the original quarter corner location was inadequate, and the quarter corner
had been properly deemed to be lost during the resurvey, so the original
corner location alleged by Lehman could not control over the resurveyed
location. Smith further argued that Lehman had fully acquiesced in the
location of the section line indicated by the resurvey, and he had acquiesced
in the construction of the fence by Tiffany on that line as well, so Lehman
should be estopped from making any assertion that the resurveyed section
line was not the true original section line. The trial court ruled against
Lehman on both issues, holding that the quarter corner in question was
properly treated as lost and properly reset during the resurvey, and also that
Lehman was estopped, by his own conduct and behavior demonstrating his
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acquiescence, from presenting any evidence regarding the original quarter
corner location.
Once again in this case, just as in the Ingalls case, just previously
reviewed, the integrity of the corners and lines of an original GLO survey
was at stake, bringing the principle that all entrymen and their successors
have the absolute right to rely on the work of the GLO into play. Its
important for surveyors to understand the reason that the original PLSS
surveys are controlling in nature, and to realize that the reason they control
is not simply because surveys always control, since that most definitely is
not the case. As we have already repeatedly seen, resurveys never carry the
same controlling value as original surveys, and in fact courts very often view
resurveys with a high degree of suspicion, since experience has taught most
judges that such suspicion is frequently justified. The reason why original
surveys have the power to control boundaries is because in conducting an
original survey, the surveyor is literally functioning as the hands of the
grantor, who is the current owner of all of the land being surveyed, therefore
all of the corners established on the ground during an original survey legally
represent a direct and conclusive expression of the intentions of the grantor
himself, regarding the boundaries of the land that he is preparing and
proposing to convey. In the west, following the Louisiana Purchase and
subsequent conquests, the United States became the owner of all of the land
comprising the public domain, and in implementing the PLSS, for the
purpose of conveying that land into private ownership, the United States
became a grantor, so the same legal principles that apply to individual
grantors typically apply to the PLSS conveyances made by the United
States. The acts of the GLO surveyors carried the full authority of the United
States as a grantor, so every grantee under the PLSS is entitled to rely fully
on the monumentation established by the GLO surveyors, not because the
GLO surveyors were perfect surveyors, but because they functioned as the
hands of the grantor, making every monument they set absolutely binding on
the grantor and the grantee of every PLSS transaction, regardless of any
technical matters, such as how well or how poorly the original surveys were
done. Lehman was a typical successor of an original PLSS entryman, so his
right to rely upon his knowledge of the location of the original corners and
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lines of his section was absolute, the Court well understood, and likewise of
course, the parties who owned land in the adjoining section, Tiffany and
Smith, were fully bound by those original locations, and had no right to
disregard them on the basis of any resurvey. The crucial question in such
situations, the Court fully realized, was whether the party presenting
evidence of an original monument location, or the party claiming that the
original monument was lost, bore the burden of proof, and here the Court
made it very clear that the party attempting to deny the validity of an alleged
original monument location must always bear that burden. Although
Lehman had only his own testimony, and that of some other early settlers,
relating to the original location of the quarter corner in controversy, the
Court, intent upon protecting his right of reliance on the original survey,
upheld the value of that testimonial evidence as being fully sufficient and
controlling, finding that the monument location was merely obliterated, and
concluding that it had been improperly treated as lost, negating the value of
the resurvey, before moving on to the second issue to be addressed:
“The controversy is as to the location of the quarter section
corner common to sections 28 and 33 ... The location of this
corner is decisive of the boundary line of the tract of land in
dispute ... The trial court found as a fact that the quarter corner
... was lost and that the corner located by respondent's survey,
on a direct line between the undisputed section corners ...
should be accepted as establishing the disputed boundary line ...
a mound and two pits corresponding to the government
regulations was observed ... it appears to have been partially
obliterated by plowing ... no corner or indication of a
government quarter corner ever existed on the direct line
between the section corners ... The genuineness of this corner is
unimpeached, save by ... the field notes and plat of the original
survey, which purport to locate the corner on a straight line
between the section corners ... The question of title by adverse
possession ... is not involved ... acquiescence ... is correlated to
the rule of adverse possession ...Where acquiescence in a
disputed boundary line continues during the statutory period
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prescribed as a bar to re-entry, title may be acquired through
acquiescence ... being presumed to be adverse ... the boundary
line did not become established by reason of acquiescence ...
acquiescence is founded upon the presumption of an agreement
fixing the dividing line from long maintenance of a fence or
other monument marking a line as a boundary ... appellant at all
times contended and insisted that the original government
quarter section corner was at the point ... contended for by him
... there is not a scintilla of evidence tending to show that
appellant ever ... agreed that the corner or the line in dispute
was at any other place than that."
Having approved the original quarter corner location defined by
Lehman's testimonial evidence as genuine, and confirmed that it controlled
over the quarter corner set during the resurvey, the Court next had to assess
the validity of the additional suggestion made by Smith, that Lehman had
forfeited his right to point out that original corner location, in order to
determine whether or not the original monument still marked the extent of
Lehman's land rights, as well as the location of the section line in question. It
had already been legally well established, for centuries in fact, that many
equitable factors can have an impact on land rights, including boundary
locations, but here the Court was confronted with the concept of
acquiescence in the context of boundaries for the first time, so the decision
of the Court here on this issue would set an important precedent, that would
be applied to all subsequent situations revealing similar circumstances.
Smith and his legal team were evidently aware that in many states
acquiescence had been adopted and applied as a means of boundary
resolution, so they had set forth the argument that Lehman's acquiescence to
the physical conditions on the ground, that resulted from the relocation of
the section line at issue by the resurvey, justified the imposition of an
estoppel against him, which would force him in effect to concede that he had
recognized the straight section line as the true line, by virtue of his actions
with respect to that line. Acquiescence, when judicially exercised as a
descriptive term for the conduct or behavior of a party, can carry varying
meanings and implications, depending upon the context in which it is used,
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but as a judicial concept, principle or doctrine in the arena of land rights, it
represents a state of inaction by a given party or parties, which can carry
specific legal consequences, when such a failure to act can be shown to have
had an impact on the land rights of others. The great significance of this case
lies in the fact that while the Court acknowledged that acquiescence can
result from an agreement, and can therefore represent valid evidence of an
existing state of agreement between adjoining land owners regarding their
mutual boundary location, it can also represent a mere state of bare inaction,
based upon plain indifference to the existing physical conditions, leading the
Court to classify acquiescence as being merely a potential factor supporting
adverse possession. Since Lehman, the Court observed, had never verbally
acquiesced to the fence built by Tiffany as his boundary, and had always
openly maintained that it's continued presence was entirely at his discretion,
Lehman's land rights had remained intact, and were undiminished by his
failure to require the removal of the fence, upon first discovering that it had
been built on his land. Since the original quarter corner location had been
successfully validated as legitimate, and the possession of the land south of
the original section line location could not be shown to have been either
adverse or the result of any agreement, through acquiescence or by any other
means, the Court reversed the ruling of the lower court on both of those
items, holding that Lehman could not be estopped from asserting his
ownership of all the land in his portion of Section 33. The outcome of this
case also serves as a very effective reminder that no retracement survey is
ever legally binding upon any party who has never accepted it, provided that
party has not sacrificed or otherwise forsaken the right to protest it, and to
present evidence potentially sufficient to have it struck down, emphasizing
the importance of discovering and utilizing all relevant evidence before
concluding that any given corner is lost.
Two other cases addressing the concept of agreed boundaries are
worthy of note at this point, the first being Wood v Bapp, which also came
before the Court in 1918, just 4 months after the Lehman case. In the Wood
case, Wood owned the northwest quarter of a certain Section 18, while Bapp
owned the northeast quarter, and the north half of the section was evidently
70 acres shy of the 320 acres contained in a typical half section. The litigants
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agreed that the north and south quarter corners of the section in question had
both long been lost, but Bapp claimed that he was entitled to his full 160
acres, leaving Wood with a northwest quarter consisting of only 90 acres,
while Wood maintained that he was entitled to 120 acres, so a 30 acre area
was the subject of the controversy over the location of the quarter section
line dividing the properties of the litigants. The quarter line location claimed
by Bapp was based on a long established crop line, which had allegedly
resulted from an oral boundary agreement entered by the predecessors of the
litigants in 1873, while the line claimed by Wood was based upon a 1913
resurvey of the section at issue. The trial court entered judgment in favor of
Wood, rejecting the idea that the boundary agreed upon in 1873 had any
validity, the Court reversed that decision however, stating that the
acquiescence of the parties and their predecessors following the 1873
boundary agreement had resulted in the acquisition of the disputed 30 acre
area by Bapp, not by virtue of the boundary agreement itself, but by means
of adverse possession. The Court thus found the 1873 boundary agreement
to have been legitimately made, yet declined to treat that agreement as a
binding or controlling factor, choosing instead to rely solely upon adverse
possession to lock down the agreed boundary location as permanent, thereby
eliminating any need to determine the validity of the methodology employed
in locating the quarter line in controversy during the 1913 resurvey.
Interestingly, in so ruling, the Court held that the location of the agreed line
was perfectly clear, despite being marked only by a furrow, declaring that
the line was "as clearly defined as though a fence stood there", and the Court
also noted that boundary agreements do not require absolute uncertainty in
order to be valid, concluding that "The books are filled with cases where
agreements have been upheld where the true boundary could have been
readily ascertained". In the 1974 case of Osberg v Murphy, the predecessors
of the litigants had built a fence to separate their adjoining properties, and
they had verbally agreed that the fence represented their boundary, but it was
then discovered by means of a survey ordered by Murphy, that one end of
the fence had been built to an incorrect property corner, which caused it to
encroach upon the Murphy property. Osberg asserted that the fenced line
represented a legally binding agreed boundary, despite it's mistaken location,
while Murphy argued that the presence of a clear mistake in the placement
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of the fence had the effect of nullifying the boundary agreement. The Court
reversed a lower court decision in Osberg's favor, indicating that the agreed
boundary was rendered invalid by the presence of a mistake in the location
of the agreed line, and observing that the fence had not existed long enough
to support adverse possession, so it was subject to relocation by Murphy to
the boundary location of record. Citing the Wood case in so deciding, the
Court thus effectively eradicated the concept of binding oral agreements as a
distinct element of South Dakota boundary law, by establishing that any oral
agreement deviating from a record boundary location merely operates to set
adverse possession in motion.
ALLARD v CURRAN (1918)
Returning to the topic of riparian boundaries and their impact on
related land rights, here we encounter a pivotal case in which the Court
opted to deliberately take a position, concerning the relationship between
natural boundaries and section lines, that the Court fully realized was not in
accord with the historic treatment of natural boundaries, establishing an
important precedent that has remained intact in South Dakota since the time
when this case was decided. The intent of the PLSS, by design, was to be
subordinate to nature, with respect to boundaries of land, and there was
never any intention that the artificial boundaries created by the original GLO
surveys and plats should be interpreted as preventing natural boundaries,
such as those formed by prominent bodies of water, from functioning to
divide properties and ownership. This concept is clearly manifested in the
rule that aliquot parts of sections which are invaded by significant bodies of
water must be designated as being incomplete, when the land is platted,
through the creation of riparian lots, in order to provide notice to all
potential entrymen that the relevant portion of the section in question is
incomplete in terms of extent and acreage, due to the presence of a bounding
body of water. In addition, ownership of land lying in close proximity to
water has always been historically understood to have distinct advantages
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and disadvantages, the primary benefit being convenient and uninterrupted
access to the water, and the major drawback being the potential damage to
the land or loss of the land from flooding, so the PLSS was devised with the
intention of clearly identifying the presence of all substantial bodies of
water, thereby giving entrymen of riparian lots notice that they were
acquiring lands that were potentially in peril. From the case we are about to
review however, we learn that the Court views respect for the controlling
force of section lines as boundaries to be an even higher equitable concern
than respect for natural boundaries, and we observe here that much like it's
highly flexible position on the determination of navigability for title
purposes, the Court is not averse to unhesitatingly adopting positions on
such boundary and title issues that are recognized as being outside the
judicial mainstream. Its noteworthy that the position on the core issue of reemergence taken here by the Court proved to be highly influential and
persuasive to certain other states, when those states subsequently
encountered cases involving comparable circumstances, having been cited
and adopted by other PLSS states, including North Dakota. Two related
riparian cases are worthy of being briefly noted at this juncture, in the 1917
case of State v Deisch, the Court held that a meandered lake, which covered
about 1100 acres, but was only 1 to 6 feet deep, was a navigable lake, on the
basis that it had been used by the public for boating, hunting and fishing for
about 35 years, confirming the Court's strong inclination to allow any public
use of water to indicate the presence of navigability. Then in 1925, in
Erickson v Horlyk, a case precisely analogous to Allard v Curran, in which
the land of Horlyk was fully eradicated by erosion, making the land of
Erickson riparian, Erickson expressly set out to convince the Court that it's
decision in Allard's favor was erroneous, to which the Court responded
simply that "Allard v Curran ... was based on equity and common sense,
even if opposed to ancient precedent", invoking the principle of stare decisis
to silence Erickson's argument, and thereby foreclosing all possible future
attempts to contest the validity of the concept of re-emergence in South
Dakota.
Prior to 1878 - An unspecified township in Union County, through
which the Missouri River ran, was surveyed and platted by the GLO.
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The river passed through Section 31 of this township, so an
unspecified number of riparian government lots were platted in that
section, but how much time elapsed before those lots were settled and
patented is unknown. At this time, the north bank of the river was
located within Section 31, an unspecified distance south of the north
line of that section, and two of the platted lots were situated in the
northwest quarter of that section, fronting upon the north side of the
river.
1878 to 1888 - During this period, the river migrated northward,
apparently by steadily eroding away it's northerly bank. By the end of
this period, the north bank of the river was in Section 30, so the lots
that had been platted in the north half of the northwest quarter of
Section 31 had become completely submerged by the river, and the
southwest quarter of Section 30 was also partially submerged under
the river, although most of that quarter apparently remained dry land.
Whether or not any of the land in either of these sections had yet been
occupied or patented by this time is unknown, but presumably at least
some of this land had been settled or put to some unspecified use,
although there is no indication that any buildings were damaged or
destroyed by the action of the river, so the area consumed by the river
during this time period may well have consisted only of unimproved
land.
1889 to 1899 - During the early part of this period, having evidently
reached the full extent of it's northerly movement, the river began to
erode away it's new south bank and started to move back in that
direction. Apparently the pace of this southward movement was very
similar to it's former northward migration, so by the end of this
period, it had evidently returned more or less to the location of it's
former channel, and was again flowing approximately in it's platted
location. At an unspecified time, Curran had acquired the southwest
quarter of Section 30, which had been temporarily invaded by the
river as described above, but which was once again dry land, lying an
unspecified distance north of the river, by the end of this period.
Whether Curran was living on her quarter throughout this period, or
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whether she arrived at some point in time during this period, is
unknown, but she apparently had direct personal knowledge of the
river movement that had taken place, so presumably she had been
present on her land since an earlier date.
1900 - At this time, Union County evidently took notice of the fact
that, by means of the river's action, the two platted lots in the north
half of the northwest quarter of Section 31 had been exposed and
restored more or less to their original size. These lots had apparently
been patented into private ownership at an unspecified date, but the
taxes on them had gone unpaid, so the county offered them for sale,
and Allard acquired the two lots by means of tax deeds. The size of
the lots acquired by Allard is unknown, and what use Allard made of
them, if any, is also unknown, but these two lots extended northward
from the north bank of the river to the south line of the southwest
quarter of Section 30, owned by Curran, per the GLO plat, so this
acquisition by Allard intervened between Curran's land and the river,
completely blocking Curran's access to the river.
1901 to 1917 - There is no indication that anything of significance
took place during the early part of this period, the river channel
location evidently remained stable, and no conflict over the location
of the boundary between Sections 30 & 31 ever arose. These two
women apparently held their respective properties for several years
without experiencing any controversy, although its quite possible that
either one or both of them may have been absentee owners, who
rarely if ever visited the area, and since there is no indication that
Allard ever lived in the area, or ever set foot on her land in Section 31,
its quite possible that Allard had never even visited or seen her
property at all. At an unspecified time however, presumably toward
the end of this period, Allard somehow learned that Curran was
claiming that she actually owned the two lots that had been deeded to
Allard in 1900, so Allard filed an action against Curran, seeking to
quiet her tax title to those two lots.
Allard did not contest or dispute any of the factual history concerning
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either the land or the river, as outlined above, she simply argued that her lots
had been legally platted, and they had never ceased to exist, despite being
completely submerged under the river for a period of at least a few years,
and Curran had never acquired the lots in controversy, so the tax deeds by
which Allard had acquired the lots were perfectly valid, and Allard was
therefore the legal owner of the two lots that had been deeded to her. Curran
argued that because the river had fully and completely submerged the two
platted lots at issue, they had legally ceased to exist, and once the river
reached Curran's land, the southwest quarter of Section 30 became riparian
in character, so any accretion that built up from that time forward, as the
river moved back to the south, had become part of her quarter, rather than
restoring the platted lots in Section 31, therefore the tax deeds to Allard had
conveyed nothing to her, since the lots identified in those deeds no longer
existed. The trial court agreed with Curran that the lots deeded to Allard had
been legally extinguished, at whatever point in time they had been entirely
consumed by the river, so Allard had acquired nothing, and Curran owned
all of the land extending southward from her quarter section to the north
bank of the river, in it's current location, by virtue of accretion.
At first glance, the decision of the trial court may seem quite bizarre
and perverse to some surveyors or others, whose thinking is structured to
recognize the highly familiar configuration of the 36 sections comprising a
typical township, and whose training leads them to visualize sections as
rectangular in shape by definition, so the idea that one section could protrude
far into an adjoining section might well seem ridiculous, especially to those
who have worked only in locations such as the typical western city, where
such variations are seldom seen. The PLSS is replete with such unusual and
obscure variations however, and rivers are one major source of many such
controversial and poorly understood situations and conundrums, due to their
particular qualities, and the way in which they have been historically utilized
and honored as boundaries. At the time of this case, many of the PLSS rules,
particularly those pertaining to riparian boundaries, which are fairly well
developed and well understood today, were still relatively undeveloped and
unknown, so its not surprising that this case proved to be problematic for the
Court. There was no question of course that the Missouri River was
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navigable and the river bed was owned by South Dakota, but the specific
issues introduced by the migration of a navigable river had not yet been
addressed by the Court at this time, since the riparian boundary cases that
had previously reached the Court had primarily involved lakes, so although
the Court certainly understood basic concepts such as accretion and reliction,
it was relatively unfamiliar with the implications of mobile boundaries in the
PLSS context. The position of the GLO, and subsequently the BLM, has
always been that section lines represent only artificial boundaries, which are
therefore quite logically understood to be subordinate to natural boundaries
such as navigable rivers, and it is for this reason, bowing to the supremacy
of natural boundaries, that the PLSS calls for section lines to close upon
such objects, in order to acknowledge their presence, rather than simply
extending section lines right through them. The principle that natural
boundary objects, such as navigable rivers, can and do control over artificial
boundaries is a basic aspect of land rights law that has stood unquestioned
for centuries, and in observance of that principle most western states have
followed the same fundamental rule that has always applied at the federal
level, which dictates that the artificial boundaries created as part of the PLSS
do not operate to legally block or prevent the movement of natural
boundaries. Under this principle, riparian government lots that are
completely submerged do cease to exist, and conversely, riparian properties
can also grow to an unlimited extent, by means of accretion, potentially
extending far into adjoining sections, and even into adjoining townships, so
in fact the position taken by the trial court in this case was fully justified,
and was entirely in accord with both existing law and the spirit and intent of
the PLSS. Nevertheless, the Court felt that the result of the application of
this principle was fundamentally unjust, and therefore, despite it's
knowledge that the rule of natural boundary control was the dominant rule
nationwide, the Court consciously chose to decline to follow that rule, which
stipulates that any land which has become riparian is entitled to remain
riparian in character, electing instead to adopt a position precisely to the
contrary for South Dakota:
“respondent claims that, when the river, by washing away
appellant's land, had reached her land, her land then became
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riparian to the river, and that she became clothed with all the
rights of riparian ownership ... and that she is the owner of all
the land that was created in front of her land ... the rule
applicable to such cases is stated as follows: If a particular tract
was (originally) entirely cut off from a river and ... was reached
by the river the latter tract would become riparian, as much as if
it had been originally such ... (because) all original lines
submerged by the river have ceased to exist; the river is itself a
natural boundary ... (and) having become riparian, it has all
riparian rights ... This rule appears ... to have sprung from the
fact that, when the riparian estate is destroyed and carried away,
the boundary line between that and the adjacent estate is
obliterated and lost, and that in the case of restoration by
accretion or reliction, there is no way of identifying the original
estate, and therefore it is deemed to have been entirely
destroyed and lost. But no such reason exists in this case. The
boundary line between the lands of appellant and respondent
was a government section line, and of course can be reestablished without difficulty ... there is no justification for the
rule ... appellant's land had been restored by the action of the
river, being capable of identification, it belonged to appellant
and should be treated as though it had never been submerged at
all."
The crucial step in the reasoning applied here by the Court,
corresponding to it's rationale in allowing boundary disputes to fall within
the scope of issues subject to resolution through adverse possession, was the
fact that the nature of this conflict was characterized by the Court as a
boundary issue, when in reality the matter was an ownership issue, and it
was this misperception of the origin of the operative rule that left the Court
unable to accept that rule, as it had been applied by most other states. Under
the principle that navigable rivers form natural boundaries, which cannot be
impeded in their movement by any artificial boundaries or privately owned
properties, the ownership of the river bed constantly migrates along with the
river, so the boundaries of the state owned bed are always located wherever
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the river is, at any given time, and accretion augments the properties on one
side of the river, while erosion continually reduces the properties on the
other side. Therefore, in this instance, when the river was in it's northerly
position, title to the platted lots in question was extinguished, having become
merged into the ownership of the river bed by the state, so the platted lots
were not eliminated due to any factors related to uncertainty over the
location of their boundaries, they ceased to exist because they were
devoured by the river, leaving no part of those lots in private ownership,
thereby rendering title to those lots extinct, although their boundaries were
still theoretically ascertainable. Since the Court saw the rule in question as
having it's foundation and basis in boundary law however, relating to
location issues, rather than title law, relating to ownership issues, the Court
quite naturally found no good reason to abandon the PLSS boundaries, once
the river had receded, because the locations of the PLSS boundaries in the
area were never questioned or challenged, and those boundaries could be
placed on dry ground once again through proper survey procedures, as noted
by the Court. So in fact it was the Court's decision to view this situation as a
question concerning the potential extinction of boundaries, rather than the
extinction of title to the lots in dispute, that caused the Court to reverse the
ruling of the lower court, and to declare that the lots at issue did still exist,
and title to them should be quieted in Allard. Even in view of the Court's
treatment of this controversy as a boundary dispute, as opposed to a title
conflict, it still could have followed the majority rule, simply by holding that
the location of the section line in question had been shifted by the force and
effect exerted upon it by the superior natural boundary comprised by the
river, but as has been well noted herein, the Court has always been highly
devoted to protecting the integrity and validity of all PLSS boundaries, as
originally monumented and platted, and the Court demonstrated the depth of
that devotion once again here. Another prominent factor influencing the
position taken on this occasion by the Court was the distinction it saw fit to
draw between lands that were originally platted as riparian, such as the lots
that were in focus in this case, and lands that were not originally riparian in
character, such as the plain quarter section owned by Curran. Since Curran's
land was not originally intended to have direct access to the river, and she
was obviously aware of that fact at the time she acquired it, having been
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obligated, like any other PLSS grantee, to take notice of where and how the
land she was acquiring was situated on the relevant GLO township plat, the
Court was inclined to see her legal interpretation of what had taken place,
leading to a dramatic expansion of her land rights, that was of great benefit
to her, as an unjustified windfall, which the Court found to be unpalatable.
The topic of re-emergence of submerged lands, thus ruled upon here by the
Court, remains among the most obscure and controversial land rights topics
even today, but the stance of South Dakota on this issue, announced by the
Court in this context, has withstood the test of time, and has been
consistently adhered to by the Court ever since.
SULLIVAN v GROVES (1919)
Continuing to trace the judicial progression of adverse possession,
from it's historic role, limited to the realm of title issues, into it's modern
form, we arrive here at a scenario involving a PLSS boundary dispute, and
watch as the Court takes the opportunity presented by this case to sweep
away the last potential obstacles to resolving boundary issues through the
use of adverse possession, thereby cementing in place the role of adverse
possession in judicial boundary resolution in South Dakota. While this
controversy confronted the Court with yet another conflict resulting from a
resurvey that had evidently been conducted without reference to any existing
physical evidence of the original location of a particular range line, the
Court's attitude toward such resurveys, which had been shaped by the
several similar cases previously reviewed herein, is plainly displayed by the
Court's decision to allow adverse possession to settle the matter at hand here,
thereby eliminating any need to analyze the validity of the resurvey. Once
again, just as was noted in discussing the outcome of the Ingalls case of
1916, there was no genuine need to resolve this case on the basis of adverse
possession, since the identical result could have been achieved just as
effectively through the application of principles of boundary law,
specifically the basic principle that original survey evidence controls, and
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the corresponding rule that any resurvey failing to properly utilize such
evidence cannot control. This case demonstrates however, that by this point
in time the more perceptive litigants and their attorneys, had recognized that
the Court was simply more comfortable supporting and upholding the
productive use of land on the basis of adverse possession than by weighing
the value or legitimacy of PLSS retracement surveys, and quite
understandably so, since the resurveys that had come to the attention of the
Court had chronically failed to conform to PLSS rules governing
retracement procedures. The Court had clearly grown very weary by this
time, of reiterating that resurveys must honor all visible and testimonial
evidence defining original GLO corners and lines, and had come to realize
the futility of repeating that message, logically leading the Court to become
increasingly inclined to embrace adverse possession as an appropriate
alternative with which to silence boundary controversies stemming from
resurveys performed in an independent manner, in derogation of the stability
of established boundaries. In this case, which has been repeatedly cited by
the Court in subsequent cases as a definitive cornerstone of modern adverse
possession, as we will observe, the Court emphatically finalizes it's approval
and adoption of the rule that adverse possession is controlled primarily by
objective physical evidence, and not by the subjective intent of the
possessor. In addition, and of equal significance, here the Court also again
confirms that the presence of a mistake concerning a boundary location has
no preventative impact on the implementation of adverse possession, since
all boundary disputes necessarily involve a mistake of some kind, by at least
one party, if not both parties, thereby bringing boundary discrepancies
within the scope of issues subject to resolution through adverse possession.
1883 - The northwest quarter of Section 18 in a certain township
situated in Aurora County, which had been platted by the GLO in
1873, was patented to Rutter. There is no indication of how Rutter
used this quarter section, but shortly after obtaining his patent he
conveyed his land to Lennox. The northeast quarter of Section 18 was
already owned by Helton, who had been farming it for an unspecified
number of years. Helton and Lennox evidently became acquainted and
they entered an agreement under which Helton would take possession
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of the quarter just acquired by Lennox and farm it along with his own
quarter, as the tenant of Lennox. Preparing to put the northwest
quarter under cultivation, these two men attempted to determine
where the township line that formed the west boundary of Section 18
was located on the ground. They were unable to locate any section
corners or quarter corners on the township line, but the southwest
quarter of Section 7, lying directly to the north of the land acquired by
Lennox, had been fenced, so they decided to adopt the fence running
along the west side of Section 7 as marking the apparent location of
the township line. Helton then began cultivating and harvesting a crop
from the northwest quarter, extending as far west as the line of that
existing fence projected south. Whether or not any of the adjoining
land in the township lying directly to the west of Section 18 had been
settled is unknown, but no one raised any issue regarding either the
location of the township line or Helton's use of the land, so he
continued to farm the land, in the belief that the township line was
located at the west edge of his field.
1886 - Having farmed the northwest quarter of Section 18 for 3 years
without any concerns being raised by anyone about the limits of the
area that he had put into use, Helton proceeded to build a fence around
the area he had been using, and he continued to farm the entire
enclosed area during each ensuing year.
1904 - Helton moved the fence that he had built 18 years earlier,
running along the west side of the quarter owned by Lennox,
relocating it 33 feet to the east, presumably to allow room for a
section line road to be built on the township line, but whether or not
any roadway was ever actually built in that location is unknown.
1905 to 1913 - During the early part of this period Helton continued to
farm the entire fenced area representing the Lennox quarter, just as he
had been doing for over 20 years, and there is no indication that any
boundary issues arose. At an unspecified date, Lennox conveyed his
quarter to Groves, and Helton continued to farm the land, as a tenant
of Groves. At an unspecified date, presumably toward the end of this
period, a resurvey of the township line was conducted, and that line
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was thereby shown to be about 200 to 300 feet east of the fences that
had long been thought to mark the township line. Who ordered the
resurvey, for what purpose it was done, and whether or not any
original survey evidence or other physical evidence relating to the
township line location was found or utilized during the resurvey, are
all unknown.
1914 - As a consequence of the resurvey of the township line,
Sullivan, who had acquired the northeast quarter of Section 13 in the
adjoining township at an unspecified time, filed an action against
Groves, seeking to have the resurveyed township line location
declared to be correct, and to have Groves and Helton compelled to
relinquish their possession and use of all of the land that Helton had
been farming west of the township line, as it had been resurveyed.
Sullivan argued that the resurveyed township line was the true original
township line, and that Groves could not successfully claim that she had
acquired any land west of that line by means of adverse possession, because
intent is fundamental to adverse possession, and neither Lennox, nor Helton,
nor Groves had ever intended to claim any portion of Section 13, or any land
west of Section 18. Sullivan further argued that because all of the use that
had been made of the land in Section 13 by Helton had been based only on
his mistaken idea regarding the location of the township line, none of that
use could be properly characterized as adverse, therefore Sullivan's
ownership of Section 13 still extended east all the way to the resurveyed
township line, just as it always had. Groves conceded the matter of the actual
township line location, and made no effort to produce any evidence to
dispute or overcome the resurveyed location of that line, instead she argued
simply that the use made by Helton of the entire area that he had fenced was
adverse, and Sullivan was therefore barred from asserting any claim to any
land lying east of the west fence line, by the applicable statutes of limitation,
which defined the parameters of adverse possession. The trial court agreed
with Sullivan that the possession of the easterly portion of Section 13 by
Helton had all been based only on his own mistake concerning the true
location of the township line, and his use of some of Sullivan's land in
Section 13 had thus been entirely unintentional, so none of the possession in
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question had been adverse, and the resurveyed township line therefore fully
controlled the boundary between the lands of Sullivan and Groves.
It was once again quite clear in this case, just as it had been in the
Ingalls case 3 years earlier, which we have already reviewed, that the source
of the controversy at hand was a disagreement or misunderstanding
involving a particular boundary location, which had obviously resulted from
an inadequate attempt to verify the location of a PLSS boundary line, as
opposed to a title issue, presenting competing claims of ownership relating
to the same tract of land. Very wisely however, Groves and her legal team
took notice of the fact that the Court had indicated that it was inclined to
disregard any partition that may once have existed between title and
boundary issues, as demonstrated by it's ruling in the Ingalls case, so Groves
took the position that the original boundary location did not matter, freely
conceding that issue to Sullivan, because Groves correctly understood that
she could far more readily prevail on the basis of adverse possession. Groves
or her attorneys realized that the Court had become aware of the fact that
direct physical evidence of original PLSS surveys had become very scarce,
as half a century had passed since many of the GLO surveys had been
completed, making original PLSS boundary locations very difficult to
conclusively prove, and they may also have known that the Court viewed
resurveys as highly suspect, since numerous previous cases had revealed that
resurveys could not be trusted to honor original survey evidence. For these
reasons, the Court had become open to resolving boundary disputes by
exercising adverse possession, which had once been reserved for the
resolution of title conflicts, and this case offered the Court an ideal
opportunity to clarify and reinforce it's stance on this particular use of
adverse possession, by eliminating the final potential roadblocks to that
concept, which were presented here by Sullivan. Maintaining that adverse
possession could not be successfully completed in the absence of genuinely
adverse intent, nor in the presence of a mistake, Sullivan pointed out that the
intent of Helton, who was merely a tenant and not a land owner, was clearly
innocent, rather than adverse, since he had testified to that effect, admitting
that his notion regarding the township line location had been contradicted by
the resurvey, although also stating that he still believed that the fences really
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were on the true original township line. The Court however, was fully
prepared to dismiss the validity of each of the assertions made by Sullivan,
holding first that the fact that Helton was only a tenant made no difference,
because the actions of a tenant legally stand as actions of the land owner
who he represents. In addition, recognizing that Helton had acted in good
faith, the clearest and strongest evidence of Helton's real intent, the Court
concluded, was his physical possession of the fenced area, because physical
evidence is always the primary evidence of intent, and furthermore, it made
no difference if Helton's opinion of the township line location was mistaken,
because every boundary dispute originates in a mistake of one kind or
another, so in the eyes of the Court, Helton's possession was entirely worthy
of protection. Quoting in part from rulings in comparable cases that had
taken place in Minnesota, New York and Wisconsin, supporting the
application of adverse possession in the context of boundary resolution,
along with the Lehman case of just the previous year, the Court explained
that:
"possession (of Helton) being shown, the presumption of seisin
during any part of such period in the true owner disappears, and
there arises in place thereof the presumption that during all such
period the possession had all the requisites of an adverse
holding ... it is under this ... that the basis for the doctrine of
acquiescence may be found ... adverse possession may be
conclusively determined by the length of time during which
there has been acquiescence in a disputed boundary ... Where
one of two adjoining owners takes and holds actual possession
of land beyond the boundary ... though under a mistake as to the
location of the boundary line, such possession ... is deemed to
be adverse to the true owner and is a disseisin ... where a
grantee in taking possession under his deed goes
unintentionally and by mistake beyond his proper boundaries,
and enters upon land ... supposing it to be his, this occupation is
deemed to be adverse ... the only sensible, safe, and really
equitable rule is to make the physical characteristics of
possession ... the sole test of adverse possession ... defendants
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in the present case claim title to the land in question under the
government patent ... The premises ... shall be deemed to have
been held adversely."
Through this citation of several highly regarded judicial authorities on
the proper use and application of adverse possession, and an exhaustive
review of the meaning of the relevant statutory language, displaying what
the Court saw as the intent of the language that had been selected in
composing the statutes of limitation controlling adverse possession, the
Court determined that neither the doctrine of subjective intent, nor the
mistake doctrine, could prevent adverse possession from rendering
boundaries of record moot. Under the Court's interpretation of the applicable
statutes, none of them presented any obstacle to the objective of utilizing
adverse possession as a tool with which to preserve original PLSS
boundaries, that had been established through use and improvement of the
land, which was presumptively made in accord with long obliterated original
GLO monumentation. So intently focused was the Court, upon discarding
resurveys that were based solely upon measurements of record, which
disclosed a lack of respect for original PLSS monumentation and the
development of the land that had been based on that original
monumentation, that the Court was prepared to employ any legal or
equitable device available to it, including adverse possession, to accomplish
the goal of defending all PLSS boundaries long established in good faith,
from disruption by resurveys not shown to have been based on original
evidence. One especially important position adopted and expounded upon
here by the Court related to the meaning of the term "seisin", an arcane word
describing land as if it were an object capable of being held in the physical
grasp of a given person or entity, and thus representing true ownership,
which the Court quite wisely and correctly understood to be equivalent in
meaning to the physical possession of land. When understood and accepted
in this sense, the presumption of seisin always lies with the physical
occupant of any land in dispute, rather than with the holder of a mere deed
describing the land at issue, so the Court's very astute interpretation of this
key term operated to negate any advantage that might otherwise have rested
with Sullivan, as the owner of record, since she was partially out of
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possession, thereby making the physically defined boundary the only
relevant boundary, under the perspective adopted here by the Court. Citing
the 1918 Lehman case, previously reviewed herein, the Court also once
again took the critical step of linking acquiescence to adverse possession,
reinforcing the proposition, first presented and discussed in that case, that
mere silence on the part of an owner of record, such as Sullivan in this
instance, can be recognized and treated by the Court as unjustifiable inaction
on the part of the record owner, due to their failure to discern the presence of
an adverse possession in progress, with potentially severe consequences for
such negligence. Having set a very distinct course for the future adjudication
of adverse possession, and having also effectively eliminated any potentially
disruptive impact that might have resulted from the suspicious and
inexplicably deviant resurvey, the Court reversed the decision of the lower
court, and remanded the case with directions to award ownership of the
entire fenced area to Groves, on the basis of adverse possession.
Two additional adverse possession cases, both also decided by the
Court in 1919, contributed to the establishment of the parameters of modern
adverse possession as well, although they were both set in the context of
genuine title conflicts, and therefore contained no boundary components. In
Taylor v Edgerton, addressed by the Court just one week after the Sullivan
case, the Court expressed it's view of the relevance of cotenancy to adverse
possession. In that case, Edgerton died in 1887, leaving his land to just 3 of
his 6 children, and in 1890 the 3 heirs who held title to the land conveyed it
to Larson, who then occupied, cultivated and harvested the land until his
death in 1910, at which time Taylor acquired the land at issue from Larson's
estate. Subsequently, one of the heirs of Edgerton, who had not been among
the 3 recipients of his father's land, decided to challenge Taylor's title to the
land in question, forcing Taylor to file an action seeking to quiet his title
against the Edgerton heir through adverse possession. The son of Edgerton
maintained that Taylor could not legitimately or successfully claim to have
adversely possessed the disputed tract, because he had always been a
cotenant of the tract, along with both Larson and Taylor, although his
existence was unknown to Taylor, and the heir had never previously exerted
any claim to the land at issue. The Court fully upheld a lower court decision
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quieting title in Taylor, as he had requested, rejecting the claim set forth by
the heir, despite acknowledging that a state of cotenancy had existed, as
asserted by the heir. In so ruling, the Court adopted the position that
cotenancy does not prevent the operation of adverse possession, holding that
Edgerton's son, despite being a legal cotenant, was on full notice of the sole
possession of the land in controversy by first Larson and then Taylor,
verifying that the passage of the statutory period had foreclosed any rights
that may once have been held by the heir to the tract at issue. Cotenancy was
again a factor just a few months later in the case of Theisen v Qualley,
which pitted a brother against a group represented by his sister, as the named
defendant, consisting of some of his siblings, and some of their children as
well. The mother of both litigants was a widowed homesteader, who died
prior to obtaining a patent to her homestead, so when she died her patent was
issued to "the heirs or devisees of Theisen", although she had expressly
willed her land to her son, the plaintiff, and he therefore maintained that he
was entitled to sole ownership of the entire homestead through adverse
possession, since he had been the sole occupant of the land at issue since
1905. Like Edgerton's son however, Qualley insisted that her brother could
not rely upon adverse possession to deny her rights to a share of the
homestead in question, because he and she had always been cotenants of the
land, despite the fact that only her brother had used the land since their
mother's passing. Deeming it unnecessary to address the correctness or the
validity of the patent at issue, and acknowledging that the litigants were both
cotenants and members of the same immediate family, the Court nonetheless
again held that the possession and use of the land in dispute by Theisen was
indeed adverse to the land rights of Qualley and all of her fellow defendants.
The claim made by Theisen, the Court concluded, just like that of Taylor,
was an exclusive and genuinely adverse claim, through which Theisen had
effectively excluded all of his legal cotenants, even his own family
members, from all of the land in controversy, confirming that neither
cotenancy nor familial relations necessarily form a bar to the successful
completion of adverse possession.
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HERRICK v GREGORY (1922)
Here we resume our review of the rulings of the Court pertaining to
easements and dedication, with a case that takes place in a typical urban
setting. The parties who produced many of the early subdivision plats, such
as the one that serves as the background for this conflict, frequently
neglected to provide adequate access, leaving it up to subsequent owners of
the platted lots to attempt to create supplemental access routes, to better
facilitate the use of various portions of their properties. This quite naturally
resulted in numerous disputes over access rights, since the land owners very
often failed to adequately describe their intentions when creating such access
routes, due to their lack of experience dealing with land rights, and the fact
that they were unaware of the meaning and the legal implications of some of
the language that they chose to use when making such efforts. The case we
are about to review provides an excellent example of the problematic
consequences of deed language, pertaining to rights of access, that failed to
clearly indicate the intentions of the party who had the right to create such
access. In accord with the earlier dedication cases that we have previously
reviewed, this decision of the Court emphasizes the great significance of
land owner actions, as opposed to written words, as evidence of the intent of
a land owner to make a dedication, which is highly analogous to the superior
weight that is typically given by the Court to evidence of the physical use
and development of land, as opposed to documentary evidence of boundary
locations. One important factor expressly implicated in this controversy is
understanding the difference between a license and an easement, which is a
distinction that is essential to the validity of land rights of many kinds, since
the latter represents a permanent right, while the former lacks permanence
and therefore amounts only to a privilege, which cannot be presumed to
endure through changes in the ownership of land. Another matter highly
relevant to this dispute involves the use of description exceptions, which are
typically presumed to represent a fee interest, but which can become unclear
when the exception relates to a right-of-way, since a right-of-way is legally
presumed to represent only an easement, rather than a fee interest, and here
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we see that ambiguity resulting from improper use of such terms can lead to
litigation, that would have been otherwise unnecessary, had proper
descriptive language been employed. An additional notable element present
in this case is the fact that a party who has no rights cannot convey any such
rights, although they may innocently attempt to do so, simply by reiterating
deed language that was insufficient to suit it's intended purpose to begin
with, when conveying land previously acquired on to a subsequent grantee,
illustrating that some deed language which may appear to address a certain
land use may actually be devoid of value, leaving the subsequent grantee in
a vulnerable position. Ultimately however, here once again the crucial
principle of physical notice overcomes and negates the absence of notice
through documentation, as the Court demonstrates that ambiguous
documentation must be interpreted in the context of the circumstances on the
ground, with respect to all forms of land rights, just as in the resolution of
boundary locations and rights of ownership.
1883 - Johnson acquired Lots 1, 2, 3 & 4, which faced to the south,
and were situated in an unspecified block of platted city lots in
Mitchell. Whether these lots were new and vacant, or were already
developed with buildings or other improvements at this time, is
unknown. Lot 1 was situated at one end of the block, and was
therefore bounded by public streets on 2 sides, while the other 3 lots
were interior, so they were bounded by a public street only on the
south. There was no platted alley in this block, so there was no means
of direct access to the rear portion of Lots 2, 3 & 4. Johnson however,
began using a path running along the rear of Lots 1, 2 & 3 to reach the
rear portion of Lot 4 directly from the side street at the end of the
block, and his regular use of this route gradually created a visible trail
in this location.
1886 - Johnson conveyed Lots 3 & 4 to Hatton, and this deed stated
that it included "a license, to use as a way or alley, 10 feet in width off
the north ends of Lots 1 & 2, the same to be kept open as a private
highway". The extent to which Hatton used this location as a means of
access to her lots is unknown, but she evidently did make at least
some actual use of it.
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1888 - Johnson conveyed Lot 2 to Helwig, and this deed contained a
reservation stating "except right-of-way, 10 feet wide, across north
end". Hatton apparently continued to use the access route passing over
the rear portion of Lot 2, with no objection from Helwig.
1891 - Hatton conveyed Lots 3 & 4 to Sherrill, and this deed stated
that "a license is hereby granted to use as a right-of-way or alley, 10
feet in width off the north end of Lots 1 & 2, the same to be kept open
as a private highway", and Sherrill evidently made use of this rear
access, just as Hatton had, without any interference.
1899 - Helwig conveyed Lot 2 to Gregory. This deed made no
reference to any alley or right-of-way, but on the same date, Johnson,
who evidently still owned Lot 1, deeded to the City of Mitchell "a
right-of-way for an alley, 10 feet wide, across the rear end of Lot 1",
and Sherrill continued to make use of this location for access
purposes. Whether or not the owners of any of the adjoining lots in the
north half of the block ever used this alley to access their lots from the
rear is unknown, but it was evidently used by an unspecified number
of other parties, aside from the lot owners themselves, these other
parties presumably being friends or others visiting the lot owners.
1913 - Gregory built a garage in the rear of her lot, apparently
completely blocking the rear access route to Lots 3 & 4, which had
evidently been acquired by Herrick at an unspecified date. Who
owned Lot 1 at this time is unknown, but Johnson was apparently no
longer present. Whether or not Herrick's deed made any reference to
the long used rear access is unknown, but presumably it did not, since
Herrick never claimed to have acquired the right to use that pathway
by virtue of her deed. How long Herrick endured this situation before
deciding to formally protest the presence of Gregory's garage is
unknown, but at an unspecified time she filed an action against
Gregory, seeking to have the old alleyway declared to be a public
right-of-way, and demanding that Gregory's garage be removed from
it.
Herrick argued that although no public right-of-way had ever been
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deeded, or otherwise formally created by means of any documentation, upon
or crossing Lot 2, Johnson had clearly intended the rear 10 feet of Lots 1, 2
and 3 to remain permanently open for use by the public, to provide direct
rear access to Lots 2, 3 & 4, and the fact that the alley had remained in use
without any blockage for 30 years, prior to the construction of Gregory's
garage, was conclusive evidence of that, so a public alley had been created
and Gregory's garage must go. Gregory did not deny that she had been aware
of the existence or the ongoing use of the rear passageway at the time she
acquired her lot, but she argued that since her deed made no reference to it,
and it had never been formally dedicated to the public, it could not represent
a legal public right-of-way, so she had the right to build and maintain her
garage just as she had done, covering the entire rear portion of her lot. The
trial court decided that the use of the rear access route was necessary to
Herrick, and therefore declared that an easement over the rear 10 feet of Lot
2 existed, which was appurtenant to the lots that were owned by Herrick, so
Gregory had to move or remove her garage and allow the use of the alley to
resume.
Much as in the Troeh case of 1910, our last previous case on the topic
of dedication, one major source of controversy here was the failure of a
grantor to insure that his intentions were expressed with sufficient clarity in
the deeds that had been prepared by him, or for him, thereby emphasizing
the importance of always choosing description language carefully and
wisely. The language chosen by Johnson relating to the use of the rear 10
feet of his lots created the general impression that he expected or desired that
area to be used for access purposes, but with the exception of his 1899 deed
to the City of Mitchell, the language he had employed was legally
insufficient to create any easements or permanent access rights. Its quite
possible that Johnson did not intend to create any private access easements,
in which case the language he selected actually accomplished his intent, but
it was equally possible, the Court recognized, that the best evidence of his
actual intent was really to be found in his actions, rather than in the written
instruments that had been created by or for him, and his final deed of 1899
supported that idea, since it expressly dedicated a public alley over the only
lot that he still owned at that time. It was also possible that Johnson's intent
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may have changed over the years, but of course the Court understood that
any such changes in his attitude that took place after his deeds of 1886 and
1888 could have no effect on those conveyances, so Herrick could derive no
direct benefit from any of the documents involved, since no access rights
through or upon Lot 2 had been expressly created by any of them. Although
it was impossible for Herrick to successfully argue that a prescriptive access
easement had been created by the long use of the location in question, since
the use of that area had all been made by virtue of agreement, and therefore
none of it had been adverse in nature, she was nevertheless in a strong
position, because she and her legal team realized that the Court had been
historically very open to the concept of implied dedication, as illustrated by
several of the cases that we have reviewed earlier. Gregory on the other
hand, was in a weak position, in the eyes of the Court, because if the Court
were to rule in her favor, the public alley dedicated by Johnson in 1899
would serve only her lot, since she had made it impossible to drive beyond
her lot by building her garage, and the notion of a public alley that served
only one party had the appearance of a perverse idea to the Court. Herrick
very wisely chose to seek a public right-of-way, in this particular scenario,
rather a private easement, knowing that this approach would give her claim a
more wholesome and less selfish appearance, and that a public alley would
be more likely to find favor with the Court, because this approach would
enable the Court to support the right-of-way as being beneficial to the
public, in accord with the intent that had been manifested in Johnson's last
conveyance. Johnson himself was evidently gone from the scene by the time
of the trial, if he had been present his testimony would have been potentially
quite significant, but he never testified and was presumably dead or
otherwise unavailable, so the Court proceeded to evaluate the evidence of
his intent, which was the central factor that would dictate the outcome of this
dispute:
"defendants proceeded to construct a garage ... action was
brought to have the said driveway declared a public highway
...the court found that the use of the said driveway by the
plaintiff was necessary ... and that plaintiff has an easement in
the said driveway ... no right-of-way was ever granted to the
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public or to the respondent across the rear of lot 2 ... no such
right has been acquired by prescription ... there is no necessity
for a means of ingress from the rear ... But it is not necessary, in
this case, to base respondent's right on the ground of necessity
... It is clear from the evidence that Johnson ... intended to keep
a driveway across the rear end of said lots open to the public ...
he expressly granted a license ... This grant, of course, did not
constitute an easement; but ... he kept the way open to the
public, and it was used by all who had occasion to use it ... no
restrictions were placed upon the use of the right-of-way by the
public ... This conduct on the part of Johnson, and of and his
successors in interest, clearly indicated an intention to dedicate
a right-of-way ... and the long continued use of such right-ofway by the public amounted to an acceptance of the same ... no
particular form of dedication is necessary, and any act clearly
indicating the intention of the owner to set apart lands for the
use of the public as a highway constitutes a sufficient
dedication."
The lower court had found that a private access easement had been
created on Lot 2, in favor of Herrick, by virtue of necessity, but the Court
determined that was not the case, since no genuine necessity existed, yet in
the view taken by the Court an easement did exist, it was not a private way
of necessity however, it was a public easement, which had been created by
virtue of implied dedication, through the actions of Johnson, which
represented stronger evidence of his true intent than his written words. Had
Herrick relied solely upon the easement by necessity, mistakenly awarded to
her by the lower court, she would have lost, since the Court observed that no
necessity existed, making that basis for the alley in controversy unjustified,
but since Herrick maintained that a public alley had been created, the
element of necessity became irrelevant, and the Court was able to fully
uphold the easement, in the contested location, despite the fact that the lower
court had deemed the easement to exist on an erroneous basis. Several
important points, worthy of note by land surveyors, were made in this case,
including the distinction between a license and an easement, a license being
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inherently temporary in nature and always subject to revocation, which is
why the 1886 deed was of no use to Herrick, while an easement is typically
a permanent right, and is always presumed to be permanent in character,
unless an expiration date or terminating event is specified in creating it. In
the 1888 deed, Johnson stated "except right-of-way", creating an ambiguity,
because a fee interest is typically excepted, while a right-of-way is typically
only an easement, but the Court resolved this poor and potentially
misleading language quite elegantly and wisely, by treating the exception as
a reservation of only a personal right of use unto Johnson himself, in accord
with the powerful judicial rule that a grantor cannot be allowed to retain a
fee interest without doing so in very clear and unambiguous terms, so in fact
no fee exception had been made. The 1891 deed, from Hatton to Sherrill,
was of no benefit whatsoever to Herrick either, although they were her
legitimate predecessors, and she held the same rights that they held, because
Hatton had gotten nothing but a license from Johnson, and never had any
permanent right to cross Lot 2 herself, so Sherrill never had any such right to
convey to Herrick, the only actual right that any of them ever had to use the
alley was that which emanated from the dedication that Johnson had made,
through implication. Perhaps most importantly, the fact that Gregory's deed
gave no indication at all of the existence of any alley, or any right-of-way, or
any dedication, was of no consequence, and could not serve her as a valid
defense, because the alley or roadway was physically visible, and like all
grantees, Gregory bore the burden of taking notice of all existing conditions
upon the lot she was buying, so once she acquired Lot 2, Gregory had
forsaken the opportunity to assert that no one had any right to drive across it,
making her construction of a garage in the alley unjustifiable. Gregory's
attempt to make use of the roadway herself, while cutting off Herrick, and
terminating any possibility of future use of that access route by others,
amounted to an abuse of the kind that the Court is always highly disinclined
to approve, Gregory's behavior had essentially dared her neighbor to mount
any serious opposition to her unilateral blockage of the alley, but Herrick
had proven to be more than equal to that challenge.
A few additional cases from this time period, also involving critical
access issues, may be noteworthy at this point. In the 1917 case of Miller v
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Southard, a group of partners, including Southard, owned several lots that
had been platted in Canton in 1880, and they wanted to erect a large
building, which as planned would extend north beyond the platted limits of
the group of adjoining lots that they owned, and would completely block a
certain platted public alley, which provided access to a street running along
the west side of their property. Miller owned a lot situated to the east of the
proposed building site, and he needed the platted alley to access his lot from
the street lying to the west of that site, so Southard contacted Miller in 1883
and discussed her plan with him. At this time, the members of the Southard
group agreed to dedicate a new alley over other land that they also owned,
leading out to another street to the north of Miller's lot for Miller's use, and
Miller verbally agreed to allow the platted alley to be closed on that basis.
The proposed building was then built, closing off the old alley, the new alley
was dedicated, and Miller used the new route for the remainder of his life.
Over 30 years later however, Miller's son filed an action demanding that
Southard's building be removed, charging that the originally platted alley
still existed, and insisting that he had the right to use it, since no
documentation indicating that it had ever been either vacated or abandoned
existed. By a majority of 3 to 2, the Court reversed a lower court ruling in
favor of Miller's son, declaring that the 1883 verbal agreement was a valid
and legally binding agreement, that was not invalidated by the statute of
frauds, which constituted a legitimate abandonment of the platted alley by
Miller, on the basis that Miller's subsequent actions fully evidenced his
intention to permanently abandon the platted alley in 1883. Dedication was
once again the primary issue in the case of Evans v Brookings in 1918,
which also involved platted city lots and streets. In that case, Jenkins and
Caldwell owned adjoining platted lots on the north side of a certain street in
Brookings, Jenkins was the mayor and Caldwell was a city alderman, and in
1900 they verbally agreed to create an alley running north from the platted
street, straddling their lot line. The alley was built and used by these land
owners and by their neighbors to the north on a regular basis, until Evans
acquired the Jenkins property in 1908 and proceeded to fence his property,
thereby preventing any further use of the alley. Brookings threatened to
remove the fence built by Evans, so he filed an action against the city,
claiming that the alley was private, rather than public, therefore he had the
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right to close it and Brookings had no right to require him to keep it open.
The Court upheld a lower court decision that the alley in question had been
legally dedicated, and the fence built by Evans must be removed, because
Evans was bound by the acts of his grantor, finding that in 1902:
“Jenkins and Caldwell, being about to construct a cement walk
along the south side of the block, set out stakes ... to mark the
ends of a cement crossing ... forming a part of such walk. This
cement crossing was built with sloping sides and corrugated
surface ... common to public crossings ... This crossing was
paid for by the city ... this constitutes ample proof ... Jenkins
considered this a public alley ... he dedicated this strip ... as a
public way ... Jenkins testified that he never had any intention
of dedicating such tract ... The landowner's intent not to
dedicate land for an alley will not be permitted to prevail
against unequivocal acts inconsistent therewith, upon which the
public had a right to, and did, rely."
Because Jenkins had condoned the construction of a concrete entrance
apron, supporting the permanent connection of the alley at issue with the
adjoining public street, as part of a public project, paid for with public funds,
the Court held that he had conclusively burdened his own property with an
easement in favor of the public. The fact that the Court ignored and
discarded the direct testimony of Jenkins, regarding his alleged intentions,
does not indicate that the Court was unconcerned with his true intentions,
quite the contrary in fact, the Court simply decided that his actions amounted
to stronger evidence of his true intent to dedicate the alley in controversy
than did his self serving words of denial. This case has been subsequently
cited by the Court in several later cases, for the proposition that the
expenditure of public funds on an access route represents strong evidence of
the existence, and the public acceptance, of an offer of dedication. The 1923
case of Serry v Custer County provides an example of the creation of a
public right-of-way through prescription, which has historically proven to be
relatively rare in South Dakota, given the preference of the Court to interpret
historic public use of a given road as evidence of an implied dedication. In
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that case, public use of a roadway connecting the towns of Edgemont,
Minnekahta, Pringle and Custer began at a time when the land traversed by
the road was primarily, if not entirely, public domain, and through steady
use the original cattle and wagon trail gradually developed into a typical
highway over a period of decades. Serry evidently acquired a certain section
through which a portion of the roadway ran in 1914, and he then fenced his
land and gated the road, claiming that he had the right to do so because no
official public right-of-way existed upon his land. At an unspecified date,
Custer County apparently informed Serry that the road crossing his land was
public, and that his gate was to be removed, so he filed an action against the
county, in an attempt to prevent such action from being taken. The Court
fully upheld a lower court ruling against Serry, agreeing that he had no right
either to gate the road in question, or to plow up and relocate any portion of
it, since a valid public right-of-way had been created, despite the fact that the
land over which it ran was part of the public domain during the early
decades of the road's use, pursuant to the prescriptive application of the
federal grant to that effect, embodied in RS 2477, as discussed previously
herein, and Serry had physical notice that the road existed at the time of his
acquisition. The automotive age had arrived, and although the Court would
only very rarely approve the creation of public prescriptive rights going
forward, as the value and legal efficacy of RS 2477 faded into history with
the passage of time, the Court would continue to support the ever increasing
need for public right-of-way, as we shall observe, primarily by consistently
protecting the section line right-of-way, and by broadly exercising the
principle of implied dedication.
KARTERUD v KARTERUD (1923)
Our next case focuses exclusively upon riparian boundary principles,
and marks the Court's first encounter with the concept of the division,
between adjoining riparian land owners, of that portion of a navigable
lakebed that has been permanently forsaken and exposed by the waters of
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the lake, which as we have already learned is known as relicted land, having
been uncovered by waters that recede through the natural process known as
reliction. While the properties owned by the litigants in this case are typical
platted riparian government lots, which are therefore both legally entitled to
increase in size, as the waters by which they are bounded permanently
recede, the overall situation is actually a most untypical one, because the
receding lake splits, effectively dividing itself into two separately
identifiable lakes, and the focal point of this natural division process
happens to be precisely where these two riparian lots come together. This
unique occurrence is even further complicated by the fact that although the
split between the lakes had already begun at the time of the original GLO
township survey, the GLO surveyor treated the two lakes as if they were still
one lake, leaving the substantial strip of dry land between them excluded
from any of the platted lots, and of course this prized lakefront property
becomes a major source of friction between two family members, when they
become the owners of these two respective lots. The most crucial matter
addressed here, which as we shall see proves to be decisive, is the Court's
perspective on the issue of whether lines of division, running across either
accreted or relicted land, in whatever direction they may run, begin at the
meander line or at the actual water's edge. This difference can be quite
insubstantial in some accretion and reliction division cases, such as those in
which the lake at issue is generally round and the platted lot lines run more
or less radially to the lakeshore, because under such circumstances the lines
of division crossing the accretion or reliction will inevitably be practically
extentions of the existing platted lot lines, converging at the lake's
approximate center. Just the contrary is true in the case that we are about to
review however, since GLO lot lines are never run radially to any lake or
river, so the point at which the accretion or reliction division begins becomes
a truly critical matter, and in this particular instance the position taken by the
Court on this issue makes all the difference in the outcome. The shape of the
lake or lakes in controversy also plays a vital role in the result approved by
the Court here, as the Court points out that the overly simplistic central point
method used to determine the courses of the reliction division lines created
by the trial judge is clearly unsuitable to the linear lake configuration, yet
declines to intervene in the specific placement of those division lines, on the
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basis that the litigants, being entirely consumed by their dispute over the
meander line, never presented any alternative method. So although the
boundaries adjudicated on this occasion, as stipulated by the Court, are
definitely less than ideally designed, the Court does very wisely conclude
the proceedings by outlining a set of broad and highly flexible guidelines, all
of which it deems to be reasonable, for the proper division of relicted
navigable lakebeds in future cases.
Prior to 1923 - Two lakes that were located in very close proximity to
each other in an unidentified township, and which appear to have once
comprised one lake, were destined to become a source of controversy
between two family members, presumably a brother and sister who
had inherited adjoining portions of the land settled by their parents.
The northerly lake was situated mostly in the east half of the east half
of Section 20, and its central axis or thread extended southward from
the northeast quarter of that section to a point just a short distance
south of the north line of the south half of the southeast quarter. The
southerly lake was significantly larger and wider than the northerly
lake, but it was also generally very long and thin in shape, and the
northerly portion of it was directly south of the northerly lake, while
the southerly portion of this lake curved off to the southwest. Most of
the southerly lake was situated in Section 29, and it may have
extended even further south into Section 32, but the north end of it
extended several hundred feet into Section 20, covering most of the
southerly portion of the southwest quarter of the southeast quarter and
most of the southerly portion of the southeast quarter of the southeast
quarter. Therefore, there was a fairly small strip of dry land lying
between these two lakes, a few hundred feet wide at the most, that
appears to have once been just a high spot in the bed of the original
single lake, which had emerged from the water through reliction, as
the water level diminished over time, splitting the original single lake
into two lakes. By the time the GLO subdivided the township, this
split had already taken place, but the GLO surveyor decided not to run
any meander lines through this strip, instead he meandered the two
lakes as if they were still one lake, so the GLO plat showed two lakes,
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with just one meander line encompassing both of them. The land
around these lakes in Section 20 was platted as riparian government
lots by the GLO, the northeast quarter of the southeast quarter became
Lot 7, and the southeast quarter of the southeast quarter became Lot 8,
both of these lots lying between the easterly meander line and the east
line of Section 20. At an unspecified time, Dagmar Karterud acquired
Lot 7 and Godthard Karterud acquired Lot 8, but whether or not either
of them lived on these lots is unknown, and whether the lots consisted
of vacant land or improved land is unknown as well. Who owned the
lots lying along the west side of these lakes is also unknown, but that
proved to be irrelevant, as the subsequent conflict was limited to
resolving the respective land rights of the Karteruds, solely in relation
to one another. There was evidently no dispute between them over
where the boundaries of Lots 7 & 8 were located on the ground east of
the meander line, the location of the east line of Section 20 was
apparently clear, the location of the platted line dividing their lots was
apparently also understood and accepted by both of them, and both of
the lakes were recognized as being navigable by both parties. A
controversy developed between them however, over who owned the
eastern portion of the strip of dry land lying between the lakes, which
had been treated as being part of the lakes by the GLO, since the line
between Lots 7 & 8 extended westward beyond the meander line ran
through that strip, so Godthard filed an action against Dagmar,
seeking judicial support for his claim that the eastern portion of that
strip was part of his lot.
Godthard argued that since meander lines are not boundaries, the
north line of his lot actually extended directly west all the way to the
southeast bank of the northerly lake, which was several hundred feet inside
the meander line, and his west boundary was the sixteenth line between the
east and west halves of the southeast quarter, which ran more or less through
the middle of the dry strip between the lakes, approximately where the
thread of the original lake had been located, before it had split into two parts.
Dagmar argued that although meander lines are not boundaries, the platted
lines of PLSS subdivisions were not intended to extend beyond meander
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lines into navigable bodies of water, so the platted line between Lots 7 & 8
actually terminated at the meander line, and all of the dry land lying west of
the easterly meander line and east of the central axis or thread of the lakes
represented accretion or reliction, which therefore had to be partitioned, to
determine the location of the boundary extending through the accreted or
relicted area. The trial court rejected Godthard's assertion that platted lines
could be extended beyond meander lines, and instead established the
location of the disputed boundary line between the properties of the litigants
through a judicial partitioning process, as requested by Dagmar, using a
single center point controlling both lakes, which had evidently been derived
by means of a survey.
The scenario before the Court in this case was certainly a very unusual
one, even as riparian cases go, and in view of that, there were some
potentially viable points that could have been made by the litigants in
attempting to persuade the Court to approach and resolve the matter at hand
in a manner favorable to either of them, which were bypassed in the
arguments that they presented. One strategy that could have been introduced
by Godthard would have involved exploring the possibility that the Court
might be open to the suggestion that the GLO survey in question was
fraudulent or grossly in error, on the basis that dry land had evidently been
deliberately or intentionally included within the meandered area by the GLO
surveyor. Meander lines were intended to follow the normally observable or
typical water line, to the extent that such a line could be determined by the
GLO surveyor, in any given location, and such lines were not supposed to
encompass distinctly dry land, as had apparently been done in this instance,
so the original surveyor could have been accused of negligence amounting to
fraud, in choosing not to trace the full boundary of each separate lake, when
running the meander line. Its also quite possible however, that the reliction
of the water had just recently begun at the time of the original survey, so the
GLO surveyor may have found the strip between the lakes to be swampy or
marshy, and he could therefore have logically concluded that the water level
he was observing might be only temporarily lower than normal, leading him
to suspect that the two lakes were likely to refill and rejoin, making the strip
useless and thereby fully justifying his method of meandering. Since
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successfully demonstrating the existence of fraud, gross error or negligence
always carries a very heavy burden of proof, whether Godthard would have
been able to prevail, had he employed this strategy, is highly questionable,
but as the result of this legal battle turned out for him, he could not have
done any worse, so in the end he and his attorney had good reason to regret
having made no such effort. Once again here, the Court realized, a lack of
clarity concerning the fundamental nature and purpose of meander lines had
been a major cause of this controversy, and all of the subsequent strife
resulting from litigation that had lamentably befallen the Karterud family, so
the Court elected to take this opportunity to again attempt to clarify it's view
of the proper function of meander lines. In addition, although it was not
judicially necessary to do so in order to resolve this particular conflict, the
Court also decided to state it's position on the topic of the division of
accretion and reliction with respect to navigable lakes, outlining what it saw
as the appropriate approach to such situations, for the benefit of all parties
who might encounter similar or comparable conditions in the future. After
noting, and quoting in part, from Iowa, Minnesota and United States
Supreme Court cases of the same character, describing the nature and
operation of meander lines, with respect to the proper division of all land
lying between a meander line and a body of water, the Court moved on to
assess the validity of the alternate methods of partitioning a lakebed, which
it found to be potentially acceptable or approvable, as may be required under
varying circumstances:
"A meandered line is not considered a boundary line, but
merely serves to define the sinuosities of the bank ... land
between the meander line and the water's edge is to be
apportioned by running lines from the intersection of the
property lines with the meander lines to the center of the lake ...
If a lake is long and narrow, the thread of the lake might with
propriety be used as the basis, or, if the lake is irregular in
shape, two or more centers might be adopted with a thread
connecting them ... The trial court ... fixed a line southwesterly
6579 feet to the center ... leaving the parties to agree on the
exact location of the line, or ... for a referee to establish the line
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... The center ... appears to have been located by the surveyor ...
we are not convinced that the evidence was sufficient to sustain
the finding ... as determined by the surveyor ... It may be that a
center should have been established for the southwesterly part
of the (south) lake ... and another center ... and a thread line
connecting them ... The object to be arrived at is to divide up
the reliction ... in accordance with the respective frontage, upon
principles of equity, and giving each riparian owner access to
the water ... the center of the lake ought not arbitrarily be taken
as the basis ... But appellant is not complaining that the center
of the lake was erroneously located."
The crux of the dispute in this case, the Court recognized, was that
Dagmar wanted the land at issue to be partitioned, treating the lake as one
body of water, and holding one single center point as a control point for that
division, in the manner of a radius point, even though the shape and
configuration of the lakes was very clearly ill suited to doing this, purely
because her lot happened to sit to the north of Godthard's lot, so running the
dividing line southwest to a sole center point was highly favorable to her.
The particular division method utilized and approved by the trial court, as
the Court indicated, was certainly not appropriate to the circumstances, and
the Court was implicitly critical of the surveyor who had apparently been
involved in implementing that means of division, by somehow calculating a
single point and declaring it to be the sole center point of these two long and
crescent shaped bodies of water. The Court concluded that the decisively
controlling principle was the concept that PLSS lines do not extend beyond
meander lines into the beds of navigable waters, so the argument that had
been set forth and exclusively relied upon by Godthard, in his effort to block
Dagmar from obtaining a share of the strip between the lakes, which gave
her full access to the coveted southern lake, had been correctly struck down
as patently false by the trial court. Because the lake or lakes at issue were
agreed by all parties to be navigable, the submerged bed or beds were owned
by the state, so there could be no justification, in the eyes of the Court, for
Godthard's position that the lot line in question extended any distance past
the meander line, despite the fact that in doing so that line would remain
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upon dry land for hundreds of feet. To the contrary, in accord with Dagmar's
position regarding meander lines, the Court held that although this meander
line was clearly no longer a viable boundary, due to the reliction that had
occurred, it did represent the presumptive original shoreline, which
represented the location of the boundary between the public lakebed and the
private lots at the time of the original survey, in the absence of evidence of
fraud or gross error in the meander line, which Godthard had made no effort
to prove. Because the composition or wetness of the land comprising the
strip at the time of the original survey was unknown, the Court had no
disagreement with the concept of treating the two lakes as one, and
classifying all of the currently exposed land within the meandered area as
relicted land, even though some of it had been shown as dry land on the
GLO plat, thereby making the lots of both litigants in effect riparian to both
lakes. Therefore, the Court fully upheld the result that had been produced by
the lower court in favor of Dagmar, although the Court very definitely did
not approve of the specific method of reliction division that had been
applied, which had resulted in a division line that was skewed severely to the
south, and was highly punitive in it's effect upon Godthard, as opposed to a
more logical division line, running more or less due west, which would have
resulted from the threadwise method of division that the Court had deemed
to be more appropriate. Nonetheless, the Court had no sympathy for the
combination of ignorance and foolishness that had been demonstrated by
Godthard and his legal team, the Court would have undoubtedly struck down
the location of the division line, had that issue been in play, but since the
division line itself had never been protested by Godthard, and he had argued
only that the meander line should be essentially ignored, his right to object
to the judicial reliction division had been foreclosed by his own failure to
actively contest that specific issue.
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KREIDER v YAROSH (1928)
At this point we examine a decision of the Court that effectively
closes out the era of unauthorized independent resurveys and their
unfortunate ramifications, by conclusively condemning the selective use of
original survey evidence that had been routinely practiced by many early
retracement surveyors in South Dakota, through the Court's wise application
of the public trust doctrine to section lines. This case represents a true PLSS
boundary dispute, properly argued and resolved as such, without the
intervention of any title issues such as adverse possession, which features
the presence of multiple township resurveys, both properly and improperly
done, that are in effect in direct competition, although conducted at widely
divergent times, creating a situation from which the final retracement
surveyor emerges victorious, based on his strong knowledge of the proper
priorities to be honored during any resurvey. Before reviewing this
gratifying scenario however, a few other relevant cases from this period are
worthy of note, as they also provide insight into the Court's view of the
integral relationship between section lines and the public right-of-way that
has been forever linked to them in the Dakotas. In 1918, in Kohlmorgan v
Roswell Township, Kohlmorgan, a farmer who owned the south half of a
certain section, managed to prevent Roswell Township from building a road
straight between the two southerly corners of his section, by successfully
proving that the GLO quarter corner monument had been set 50 feet south of
a straight line between the section corners. He did so by showing that two
roads running along the section line, one to the east and one to the west,
when extended to intersect at the quarter corner in dispute, pointed to the
original corner location maintained by him. Confirming that the existing
roads were the best evidence of the corner's original location, the Court
agreed with Kohlmorgan that the corner at issue, although physically absent,
was only obliterated and was not lost, since the two road alignments served
as conclusive pointers to it's original location, holding therefore that the
section line right-of-way at that point was in fact 50 feet south of the straight
line location asserted by the township. Also in 1918, and again in 1920, the
Court even more emphatically upheld the proposition that an existing section
line roadway is valid and potentially controlling evidence of an original
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section line location, which prevents any section corner or quarter corner on
such a line from being treated as a lost corner, in Larson v Edison Township.
In that case, a surveyor who had declined to accept an existing section line
road as legitimate evidence of an original section corner location was
severely criticized by the Court, as having been "absolutely incorrect" in
viewing the corner in question as lost and setting it outside the roadway.
Then in 1926, in Lawson v Viola Township, citing the Randall and
Hoekman cases that we have previously reviewed, the Court yet again ruled
that an existing section line roadway is superior to plats, field notes, or any
other form of measurement or dimension, as evidence of an original quarter
corner and section line location, once again rejecting the suggestion that a
township has any authority to straighten a section line road that deflects at a
quarter corner. With this strong and highly consistent line of decisions, the
roots of which lead back to the seminal 1891 Wells case, the Court had
amply demonstrated it's ongoing commitment to diligently protect the
section line right-of-way, in it's original location, in every instance.
1868 - A certain township was surveyed and platted by the GLO in
Brule County. Exactly when the actual settlement of this township
began is unknown, but it was apparently steadily populated in the
typical manner over the ensuing years.
1886 - A resurvey of this township was performed, during which
most, if not all, of the original GLO monuments, or evidence of their
original locations, were recovered and remonumented. By this time,
the township was well populated, some section line roads had come
into use, and many boundaries had been established through use and
improvement of the land. This resurvey was evidently well executed,
faithfully perpetuating many existing corner locations, by honoring
the testimony of the entrymen, which verified that their established
boundaries had been based on original monuments that they had found
and relied upon, despite the discovery of numerous measurement
discrepancies in the original survey, and there is no indication that any
boundary disputes or other disruption of the community resulted from
this resurvey.
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1904 - For unknown reasons, another resurvey of the entire township
was ordered by the township officials, and this resurvey was
performed by Meyers, who was evidently not a resident of the
township, and was brought in by the local officials to assess the
validity of the original survey and the established boundaries that had
been based upon it. Meyers openly stated that it was his objective to
straighten out all of the section lines running through the township,
and he pledged that he would do a better job of surveying the
township than the earlier surveyors had done, promising that he would
provide this township with the best survey that had ever been done in
the county, so he proceeded to make measurements and set new
corners throughout the township, disregarding all physical and
testimonial boundary evidence. Once Meyers had completed this
resurvey, the township officials called a meeting and instructed those
in attendance to vote to either accept or reject his work, and this vote
was in favor of accepting the resurvey, by a margin of about 3 to 1,
whereupon the township officials declared that the newly set corners
and lines were official and the original survey was thereby abandoned.
Not all of the residents of the township accepted this procedure and
abided by this outcome, but many of them did, apparently including
Kreider, who owned the west half of Section 11. The resurvey had
evidently shifted the east line of Section 10 an unspecified distance to
the west, and Smith, who was one of the officials who had ordered the
resurvey, and who was also the owner of the east half of Section 10,
acknowledged the validity of the new line between Sections 10 & 11,
so he and Kreider openly accepted that line, and both of them treated
it as their mutual boundary henceforward.
1905 to 1927 - At an unspecified time, presumably during the early
part of this period, a road was built on the resurveyed line between
Sections 10 & 11, and this roadway eventually became part of a
longer highway that continued for several miles to both the north and
the south, as additional portions of it were built and opened. Over the
ensuing years, fences were also built along various portions of this
route by Kreider, Smith and the owners of other land in the sections to
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the north and to the south, who had chosen to adopt the resurveyed
section lines as legitimate. Although this highway was continuous it
was not straight and it contained various bends and jogs at property
corners, making it's alignment less than fully satisfactory for more
modern high speed automotive travel. Therefore, near the end of this
time period, yet another resurvey of the township was conducted, by
order of Yarosh, who was a county commissioner, with the objective
of marking the location of the existing section line right-of-way, for
the purpose of constructing a new highway to replace the old roadway
running between Sections 10 & 11, and between all of the many other
sections lying directly to the north and to the south along the intended
route. Mather was assigned to perform this resurvey, and he evidently
fully understood his task and executed it very well, successfully
locating most of the original GLO corner locations within the
township, or acceptable evidence thereof, including some of the
corners that had been remonumented in 1886, while discounting all of
the corners that had been set by Meyers. The entire new highway was
then built upon the section line alignment that was identified by
Mather, which was an unspecified distance to the east of the existing
roadway, in accord with the original survey evidence that he had
recovered, with the exception of the portion that was to run along the
line between Sections 10 & 11, which could not be completed because
Kreider refused to allow any construction along the west side of his
property, resulting in a one mile gap in the new highway. Kreider was
convinced that he owned all of the land east of the section line that
had been run by Meyers, so he filed an action seeking to have that line
declared to be his west boundary, and to prevent the new highway
from being extended through what he believed to be his land, lying
east of the Meyers line.
Kreider must have realized that the resurvey executed by Meyers was
neither faithful nor equivalent to the original GLO survey, because he did
not argue that it should control by virtue of being a perpetuation of any
original corners or lines. He argued instead that the Meyers resurvey had
been officially authorized and adopted, by both the township officials and
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many land owners, so he was fully entitled to rely upon it, as he had done in
erecting fences along the west side of his property, and the public had
acquiesced in his boundaries, as they were defined by that resurvey, so he
could not be legally compelled to accept any boundaries other than those
marked by Meyers. Yarosh argued that the Mather survey had been properly
executed, while the Meyers survey had not, therefore the alignment that had
been monumented by Mather controlled, as a valid representation of the
original work of the GLO, and the Meyers resurvey could not be treated as
controlling, despite the fact that it had been approved by local government
officials, because such officers have no power to authorize or approve any
resurvey that fails to respect all existing evidence of an original survey, and
fails to preserve all established original corner locations. Yarosh further
argued that the fact that no one had ever objected to the location of the
section line in question, as it had been delineated during the Meyers
resurvey, was of no significance, because mere inaction, in the form of
acquiescence, by government officials, or by the public at large, could not
operate to legally relocate any existing public rights. The trial court agreed
that the Mather resurvey was legitimate and the Meyers resurvey was of no
value, so Mather's work controlled, and the highway could legally be built
within the existing section line right-of-way, on the alignment that had been
staked by Mather, without damage to the rights of Kreider and without any
payment to him, requiring him to cease his objection and allow the
construction work to proceed.
It appears that Kreider's legal team was cognizant of the principle that
original surveys control, and they knew that for that reason there was no use
in directly arguing that the resurvey done by Meyers could effectively
supersede or replace the original survey done by the GLO, yet they had a
very difficult row to hoe, so they opted to make an effort to cast doubt upon
the allegedly original corners by pointing out known measurement
discrepancies. Specifically, they called the attention of the Court to the fact
that several of the sections that were located in the part of the township
around the Kreider property were not precisely 80 chains in length,
highlighting Section 13 as 81.98 chains, Section 14 as 78.75 chains, Section
15 as 82.30 chains, Section 16 as 74.08 chains, and Section 17 as 80.88
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chains, thereby suggesting to the Court that the work of the GLO had been
intolerably sloppy and unacceptable. The Court was quite predictably
disinclined to take this view however, dismissing the idea that any such
discrepancies could invalidate the original survey, nor did such errors
indicate that any monuments had been moved, or incorrectly restored after
being obliterated, in the eyes of the Court. To the contrary, the Court knew
only too well by this point in time that sections which deviated from their
platted dimensions were not the least bit unusual, and quite understandably
so, since the GLO surveyors themselves had been fully aware that their
monumentation would be absolutely controlling, wherever they set it, and
relatively few of them had developed a reputation for being meticulous in
their measurement making, nor should they be expected to have achieved
great precision, because their principal duty was simply to get the public
domain platted for disposal. Since the evidence that Meyers had set out to
perform an independent resurvey, and had never even intended to honor any
physical evidence of the original survey, was undisputed, there was no
chance that his survey could be deemed controlling by the Court, and in
view of the many explicit directives that had been handed down by the
Court, warning that no such survey could control, it stood either as an
indication of ignorance of the law on the part of Meyers, or as an act of
deliberate defiance of the law. Assuming Meyers was genuinely ignorant,
and really believed that his own survey work was legally superior to that of
the GLO, the misunderstanding embodied in this scenario is the idea that
precision of measurement is the most vital element of land surveying, so
superior measurements can serve to negate the integrity and authenticity of
original surveys, and it was this erroneous notion that had precipitated all of
the damage to the land rights of parties such as Kreider, which had resulted
from the work of Meyers. Mather, on the other hand, obviously understood
that original surveys do not control because they were superior in quality,
they control because they generated essential land rights, which must be
deemed fully reliable in order to have any value at all, and of course it was
this wisdom demonstrated in his work, along with his diligence in
recovering original survey evidence, that earned Mather the praise of the
Court, and allowed his work to prevail. Clearly realizing that Mather's work
was superb, as was the work of the 1886 surveyor, the Court applauded their
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monument perpetuation efforts, before moving on to quote in part from an
Iowa decision, in addressing the second issue that had been posed by
Kreider:
"Mather has succeeded in finding ... mounds and pits which
marked the original corners ... the government field notes do
not accurately show the distance between the government
mounds ... Meyers marked the corners with apparently little
regard for government mounds, pits, established roads, or
ancient fences ... The trial court found that the said proposed
and pretended Meyers survey was not made or established
along the line of the original government survey ... the marks
adopted and established by the survey of Meyers ... were not
the original locations fixed by the United States ... the line as
re-established by Mather is upon the line of the original
government survey ... The findings ... should not be set aside,
unless it be, as appellant contends, that the county has no right
to change the boundary line between sections 10 and 11
established by the Meyers survey and acquiesced in, and
adopted, by the owners ... no provision ... permits section line
highways to be changed by agreement of adjoining land owners
... no one representing the public is authorized to enter into an
agreement upon, or to acquiesce in, any particular location ... an
official of the county or township is not authorized to establish
the line other than in it's true location, it follows that the public
cannot be bound by such an agreement, if made, or by
acquiescence in a line."
The only chance Kreider had of prevailing in this dispute was to
convince the Court that he was an innocent party who had relied in good
faith upon a certain survey, so his rights in relation to that survey should be
protected, and he or his legal team made the doctrine of acquiescence their
tool of choice, with which to try to accomplish that mission. In this context,
they were again facing an uphill battle, which was doomed to play out in
futility, since as we have noted in reviewing previous cases, the Court by
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this time had already defined the operation of acquiescence in the arena of
land rights as being merely one means of proving adverse possession, and of
course the validity of the concept of adverse possession of public rights is
universally denied. Kreider did not present an entirely unsympathetic figure
however, although its very doubtful that he was truly unaware of the rule of
original monument control, and he was therefore not completely innocent in
his acceptance of the bogus Meyers resurvey, so the Court endeavored to
clarify just why acquiescence could not operate in his favor. In a sense, the
Court recognized, Kreider had been victimized by the unauthorized actions
of the township officials who had set up the public vote on the validity of the
Meyers resurvey, which had been genuinely misleading to Kreider, causing
him to believe that he could rely on the outcome of such a vote. The
township officers, the Court observed, had no authority to order an
independent resurvey, no authority to approve it, no authority to overturn the
GLO survey based on any public vote, no authority whatsoever to take any
action that had the effect of relocating the public section line right-of-way,
and absolutely no authority to acquiesce to any kind of alteration of
established public rights, including any change in the location of such rights.
So even if the reliance placed upon the work of Meyers by Kreider or others
had been completely innocent, the Court indicated, it could not be upheld,
because it stood in blatant contradiction to the public trust doctrine, which
holds among other things, that public land rights based on original surveys
that were mandated and performed by the federal government for the benefit
of the public, such as the section line right-of-way, are not subject to change
or damage through unauthorized acquiescence. Concluding that the public
rights embodied in the location of the section line right-of-way represented
the ultimate controlling factor, making the original section line location
necessarily absolute, and always subject to use for it's intended purpose, the
Court fully upheld the lower court ruling against Kreider, enabling the
construction of the new highway to proceed to completion. The Court had
thus made it very clear that certain equitable concepts and principles, such as
acquiescence, become inapplicable in the presence of public rights, because
although private individuals can be bound by their own inaction, public
officials cannot, since the binding nature of the acts of government officers
is derived solely from their authority, so anything that they lack the authority
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to do, such as betraying the public trust or any interests of the public, can
have no meaning or value, and can be given no legal effect. Likewise in this
instance, the agreement between Smith and Kreider, relating to the Meyers
section line, even if deemed to be a valid and potentially binding agreement
between two private parties, could be treated only as a nullity, because even
if they had the authority as land owners to forge an agreement concerning
the location of their mutual boundary, neither party to that agreement had
any authority to relocate the public section line right-of-way, which in the
view of the Court renders every relevant section line location a matter of
public interest.
In 1931, the Court was compelled to address another PLSS boundary
controversy in which the location of the center of a certain Section 4 was
instrumental, in the case of Iverson v Johnson. The evidence presented in
that case convinced the Court that the GLO had actually run and marked not
only the exterior lines of that particular section, but also the quarter section
lines within the section, setting original monuments at quarter mile intervals,
described by the Court as "80 rod mounds", in so doing, including one to
mark the center quarter corner. Iverson owned the northeast quarter of the
section, while Johnson owned the southeast quarter, and Johnson obtained a
survey in 1928 which placed the center quarter corner nearly 200 feet north
of the monument that had always been accepted as marking the center of the
section by Iverson and by Johnson's predecessor, who were both the original
patentees of their respective quarters. So Iverson filed an action, seeking to
have Johnson's survey invalidated, on the basis that Johnson's surveyor had
erroneously failed to accept the original GLO monuments located inside the
section, and the testimony of Johnson's predecessor, regarding the
authenticity of the original monuments, proved to be highly persuasive to the
Court. Reiterating the position that it had taken in the Coulter case of 1913,
previously reviewed herein, the Court agreed with Iverson that the original
monuments marking the quarter section lines had been improperly rejected
by Johnson's surveyor, since the fact that they were substantially in
disagreement with his own quarter section lines was not a valid basis upon
which to deem those monuments to be "uncertain, doubtful or lost", fully
upholding the lower court's ruling that the original quarter line
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monumentation controlled. Despite the great emphasis historically placed by
the Court upon the value of superior evidence, as opposed to measurements,
in the determination of boundary locations, the Court does not approve and
adopt testimonial evidence of boundary locations as controlling in every
case, and the 1932 case of Christianson v Daneville Township presents an
example of a situation in which the Court was unconvinced of the validity of
an alleged original section corner monument location. In that case,
Christianson owned the southwest quarter of a certain Section 21, and he
claimed that he had marked the original southwest corner of his land with an
iron stake, at the spot where he had once found what he believed to be
remnants of a GLO section corner monument, that had been set in 1866. The
location thus marked by Christianson operated to create a jog in a proposed
section line road however, so Daneville Township chose to contest his claim,
forcing Christianson to file an action to attempt to prevent the township from
improving the road along a straight line between known section corners to
the north and the south. Noting that 7 witnesses had testified in support of
the section corner location asserted by Christianson, but 7 others had
testified to a contrary location, the Court reversed a lower court decision in
his favor, and declared the corner in question to be genuinely lost, thereby
enabling the township to utilize the straight section line right-of-way,
running between known section corners to the north and the south. In
addition, the Christianson case is noteworthy as the occasion upon which the
Court first formally approved the use of proportionate measurement for the
restoration of PLSS corners that are truly lost.
HENLE v BODIN (1928)
By the time our next case arrived before the Court, a quarter of a
century had passed since the Court had set forth it's view of the significance
of the dedication of platted streets in the context of boundary law, in the
1903 Sweatman case that we have previously reviewed, establishing that the
dedication of streets by means of a plat is not presumed to operate as either a
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restriction on the fee ownership of a grantee of a platted lot, or as a
reservation of fee ownership of any street to a grantor of any such platted
lots. Dedication, in the perspective taken by the Court, is an important
concept that creates essential public rights, but it does not presumptively
equate to fee ownership of land, because the purpose of dedication, as a
principle supporting vital public interests in land, does not require any
transfer of land in fee, it requires only that the land subject to dedication
shall be impressed with such rights as are necessary to make and to keep the
dedicated area in a state or condition that is useful and beneficial to the
public. Under the public trust doctrine, approved and applied by the Court,
dedication effectively commits land to public use, typically for a specific
purpose and for a period of time governed by the duration of the need for it's
use, but presumptively dedication has no restrictive or otherwise adverse
effect upon the fee ownership of the dedicated area, which passes by
conveyance to every grantee of the land to which any relevant portion of the
dedicated area is appurtenant. The burden or encumbrance upon land that is
represented by dedication thus typically forms an easement, allowing the
public to function as the dominant party with respect to the dedicated area,
yet providing for the potential removal of that right, at such time as the need
for the land to bear such a burden ceases, while leaving the ownership of the
underlying land intact, as part of the relevant adjoining estate or estates, and
it is this scenario that the case we are about to review very well illustrates. A
rather unique situation, demonstrating one limitation upon the concept of
dedication, played out in 1917, in the case of Grand Crossing v City of
Mobridge. In 1908, Grand Crossing platted a large addition to Mobridge,
consisting of many blocks containing typical city lots, but 2 of the platted
blocks were labeled "Reserved for Courthouse Square" on the plat, in
anticipation of the Walworth County Courthouse being built in that location,
yet the dedication statement on the plat made no reference to those 2 blocks,
which represented the proposed site of the county seat. The county seat was
subsequently situated in Selby, leaving the Mobridge site abandoned in
effect, so Grand Crossing wanted to subdivide and sell off the 2 reserved
blocks, but this idea was protested by Mobridge, on the basis that Grand
Crossing had dedicated the 2 blocks so they belonged to the city. The Court
upheld a lower court decision that Grand Crossing had not dedicated the 2
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blocks, Mobridge had no rights or interest in the land, and Grand Crossing
was free to dispose of the blocks in question as it saw fit, because a
reservation for an intended use or purpose that never occurs does not
constitute a binding dedication. In so ruling, the Court explained that "The
word reserve ... is not expressive of an intention to make a present grant or
donation" instead it indicates an intention to retain, except or withhold land,
therefore Grand Crossing escaped the burden of dedication and kept fee
ownership of the land, based upon the company's wise decision to label the
proposed site as a reservation, which the Court found to be clear notice to all
parties reading the plat that no dedication of the site at issue was being
made.
Prior to 1914 - Beresford, in Union County, was platted at an
unspecified date, presumably during the 1880s, the plat evidently
being typical of that time period, created an unspecified number of
blocks containing typical rectangular lots and several city streets. This
plat evidently served to successfully dedicate the streets that were
thereby created, but it apparently did not specify whether those streets
were dedicated in fee or in the form of an easement. One of these
platted streets was Willow Street, which was 80 feet in width, and a
portion of that street ran along the south side of Block 9. Whether or
not the land lying along the south side of Willow Street was also
platted is unknown, presumably it was not, since it was never
referenced as such. The portion of Willow Street lying south of Block
9 was never opened or used as a street, and at an unspecified date, a
100 foot by 150 foot tract of land, the north side of which adjoined the
centerline of this portion of Willow Street was acquired by Lehman.
Who originally created this tract, when it was created, and who had
owned it prior to Lehman, are all unknown, but by the time Lehman
acquired it, this tract was fully fenced and it contained a house that
had been occupied for several years. Evidently no one representing
Beresford ever made any suggestion that this tract encroached upon
Willow Street, and it was never suggested that the fence or house
needed to be removed from the platted right-of-way of Willow Street,
but neither was this portion of Willow Street ever officially vacated.
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In 1914, after having occupied and used this property as his residence
without any objections for several years, Lehman conveyed it by
warranty deed to Henle, describing the north line of the property as
being 40 feet south of Block 9, but this deed made no specific
reference to the existence of Willow Street.
1920 - After residing on the subject property for 6 years, apparently
without incident, Henle conveyed it to Bodin by warranty deed, again
describing it's location with reference to Block 9, but giving no direct
indication in the description that part of the tract was situated within
the right-of-way of a platted street, and under the terms of this deed
the property was mortgaged by Bodin to Henle.
1923 - Whether or not Bodin ever actually occupied or used this
property himself is unknown, but he mortgaged it again at this point,
although he had not yet paid off his mortgage to Henle, using the
property as security for a loan he obtained at this time from the
Beresford State Bank.
1925 - Bodin somehow discovered, or was informed, of the existence
of Willow Street, so he learned at this time that the northerly 40 feet
of his property was within the platted right-of-way of Willow Street.
There is no indication however, that any plans ever existed to open the
street, or that there was ever any suggestion that any of the
improvements situated on Bodin's property might need to be
relocated.
1927 - The second Bodin mortgage, created in 1923, which remained
unpaid by Bodin, was assigned by the bank to the Beresford Holding
Corporation. Since Bodin had also failed to pay off his original
mortgage, Henle filed a foreclosure action against him, and against the
bank, and the holding company, and the city. Bodin, apparently
convinced that his title to the property was of little or no value, due to
the presence of Willow Street, and deciding that he therefore no
longer wanted the tract, responded by conveying it to the holding
company, by warranty deed, in an attempt to satisfy the 1923
mortgage, thereby dropping out of the action and leaving the holding
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company to engage Henle alone, should the company elect to attempt
to fight Henle's claim of ownership of the subject property based on
his right to foreclose the 1920 mortgage.
Henle argued that the title to the entirety of the subject property was
good, and that it had been legally conveyed to him, and that he had legally
conveyed all of it to Bodin, regardless of the fact that a portion of it was
located within a platted public street, so he was entitled to full payment for
the property in question, under the terms of his conveyance to Bodin, as the
holder of the senior mortgage, and in the absence of such payment he had
the right to foreclose upon the subject property, thereby retaining ownership
of all of it in fee. The Beresford Holding Corporation, acting as the sole
defendant, since Bodin and the bank and the city had all removed themselves
from the matter, by asserting no interest in the subject property, argued that
the title to the subject property had never been good, because Beresford held
title in fee to the north 40 feet of the property, by virtue of the dedication of
Willow Street as a public street, so Henle had never owned the entirety of
the property in fee, and he therefore had failed to fulfill his commitment to
convey all of the property in question to Bodin, rendering his foreclosure
claim invalid. The trial court decided that Henle had never acquired or
owned the north 40 feet of the subject property, which was owned in fee by
the City of Beresford, by virtue of the dedication by plat of Willow Street, so
his fee ownership was limited to the south 60 feet of the property in
question, therefore his mortgage claim was valid only to that extent.
The scenario before the Court in this case was quite typical of those
situations that develop from a lack of attention to detail regarding land
rights, on the part of local officials who may often have only very minimal
knowledge of the law, and who frequently hold various mistaken views
pertaining to land rights, having never personally studied that subject or
been otherwise educated on such matters. Its likely that the local authorities
responsible for the public streets in Beresford at this time simply assumed
that all of the platted streets were public, as a result of having been shown on
the original plat, regardless of whether or not they had ever been put into any
actual use for purposes of travel, so they were unconcerned with any private
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uses of any portions of those streets that had never been opened, and just
assumed that they would remain public forever, whether they were ever used
by the public or not. Its also quite possible however, that a decision had been
made at some point, by someone in a position of proper authority, that part
of Willow Street would never be needed, but there had appeared to be no
reason to bother with formally vacating it, or the importance of documenting
the vacation or abandonment of streets was not understood, or that was
meant to be done but was forgotten. In any event, the Court noted, the street
in question had been platted as a properly defined public right-of-way, but it
had remained utterly unused for several decades by the time of the trial, and
there was absolutely no evidence of any acceptance of the relevant portion
of that street by the public, which was essential to perfecting any offer of
dedication, in the form of either physical evidence or documentation of any
kind, aside from the plat itself. Therefore, the Court indicated, whether or
not Beresford actually held any rights at all to the portion of the street in
question was a matter of serious doubt, and the fact that the present city
officials had decided to claim no rights to that area, choosing instead to drop
out of the current litigation, rather than challenge the rights asserted by
Henle, was strong evidence, in the eyes of the Court, that the city either
believed that it held no rights to the land in question, or it simply no longer
cared about that strip at all. Nevertheless, at the trial the litigants had agreed,
by means of a stipulation, that Beresford held title to Willow Street, so the
fact that Beresford held some form of rights to the strip in question had been
freely acknowledged by all parties and had never been expressly denied by
anyone, the Court observed, leaving only the nature of whatever rights to the
area at issue might be currently held by the city as an open question. Well
aware of the common misconception that a right-of-way typically represents
a fee boundary, and that all platted streets are owned in fee by the public, the
Court deemed this an appropriate opportunity to once again provide a
reminder of the presumption at law to the contrary, finding that:
“it does not appear that any of said grantors, grantees,
mortgagors, or mortgagees knew, until about 1925, that the
north 40 feet of the tract in question is the south half of Willow
Street ... dedicated as a street when the addition was platted and
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never having been vacated ... it was stipulated by the parties
that .... the north 40 feet ... belonged to the city of Beresford for
the purposes of a public street ... the trial court made findings ...
that appellants were not, at the time of their conveyance to
Bodin, the owners of the north 40 feet ... There is no evidence
whatever that, at any time, said premises were used and
occupied as a street ... for over 30 years said premises were
used for residence and garden purposes ... the word title
signifies the means by which the owner of land rightfully holds
the possession thereof ... If the city of Beresford claims the fee
title to this 40 foot strip ... such claims may be adjudicated ...
the trial court could render no judgment determining their rights
... Appellants are asking for a new trial because the trial court
held that their mortgage was not a lien on the north 40 feet ...
only the south 60 feet ... if appellants were the owners of the
south 60 feet of this land, and, by dedication the city of
Beresford acquired the right ... to use this north 40 feet for
street purposes, appellants would still be the owners of the soil
and freehold of the street in front of such lot to the center
thereof, incumbered only by the easement in the public for
passing and repassing ... conveyance of property fronting on a
highway is presumed to carry title to the center thereof unless
the fee is expressly reserved ... to limit appellants foreclosure to
the south 60 feet was ... unwarranted."
Harkening back to the powerful Sweatman case of 1903, a decision
which itself was based on boundary and ownership principles that had been
developed in even earlier cases that we have also reviewed, the Court here
again expressed its unswerving support for the conveyance of private land
rights to their maximum possible extent, thereby making it clear that
grantors can claim to have reserved nothing from their grantees that they
failed to remove from the operation of a conveyance by use of the clearest
possible terms. Since there had been no evidence presented relating to how
the particular tract of land that had been conveyed to Henle had been
originally created, the Court was entirely unwilling to agree with the
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conclusion that had been reached by the trial judge, to the effect that Henle
could not possibly own the 40 foot strip in controversy, in fact the trial court
had been completely unjustified in drawing any conclusion on that issue, in
the view of the Court, once the city had dropped out of the case, since public
rights were involved. Furthermore, the Court went on to point out, there was
no valid basis upon which to portray Henle as anything other than an
innocent grantee, who relied upon his warranty deed from Lehman in good
faith, which he had a perfect right to do, so there could be no justification for
setting up any presumptions against the ownership of the entire tract at issue
by Henle, and he was fully entitled to the benefit of those legal presumptions
that are applicable to any typical grantee. Henle, the Court recognized, had
acted somewhat unwisely in agreeing to the stipulation language, which had
made reference to Beresford being the owner of Willow Street, and the
holder of title to the platted right-of-way of that street, yet the Court was
disinclined to hold that agreement against him, and chose to treat it instead
as an insignificant technicality, explaining that title to an easement was no
less valid than fee title, since the evidence indicated that Henle had entered
the stipulation agreement on that basis. Henle was perfectly willing to
concede that Beresford held title by dedication to all of Willow Street as
platted, because he evidently understood that under the law dedication is
always presumed to be made in the form of an easement, rights of that nature
being the only rights logically required to put any right-of-way to it's
intended use, as a public thoroughfare in this instance. Bodin, on the other
hand, apparently took fright in the extreme when he learned that a
substantial portion of his property sat within a platted public right-of-way,
deciding to simply bail out of the situation and abandon the property, all
unnecessarily, illustrating the potentially adverse consequences of ignorance
of the law pertaining to dedication. Having discerned the presence of no
definitive evidence to the contrary, the Court held that the centerline
boundary principle was applicable, concluding that the original description
of the tract must be presumed to have been written with knowledge of the
law, and therefore it had intentionally and correctly encompassed a portion
of Willow Street, regardless of whether the plat dedication of that portion of
that street, presumably intended only as an easement, was ever legally
accepted by the public or not. For that reason, the Court remanded the case
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back to the lower court, with directions to grant Henle's request for a new
trial, in order to give him the opportunity to successfully foreclose upon the
entirety of the subject property and maintain complete ownership of it, or to
be compensated for the full value of the entire 100 foot by 150 foot tract.
ROGERS v STANDARD LIFE INSURANCE (1928)
Returning to our review of the Court's treatment of land rights claims
implicating the statute of frauds, we encounter a case in which the critical
events, that leave a land owner in the vulnerable position of having to
preserve his rights to his land on the basis of a mere verbal agreement, play
out over a very brief time period, consisting of just several days. Situations
such as the one that develops here are made possible by the fact that crucial
dates and deadlines are inevitably involved in all transfers of land rights,
creating urgency that can turn into emergency when communication is
inadequate or breaks down, and the Court's resolution of the conflicting
claims that are set forth in this case serves to illustrate that the Court always
strives to walk a line which represents a proper balance of law and equity.
Whenever the statute of frauds is in play as a potentially controlling factor in
land rights litigation, the powerful principles of notice and estoppel
invariably prove to be highly relevant to the outcome of the controversy,
because the Court has consistently maintained that such equitable factors can
play a decisive role in the adjudication of land rights, effectively limiting the
applicability of codified maxims of law, such as the statute of frauds. By this
time, the Court had already repeatedly demonstrated that it was fully
prepared to honor and protect equitable rights to land, which had been
acquired by an innocent grantee, through performance of an oral contract or
verbal agreement, that would be nullified by an inflexible application of the
statute of frauds. In the 1912 case of Steensland v Noel, Steensland claimed
that Noel was wrongly occupying a quarter section owned by Steensland,
that he had allowed Noel to use only under an oral lease agreement, which
Steensland asserted had expired. Noel claimed however, that his agreement
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with Steensland had actually been an oral conveyance agreement, rather than
just a lease, answering Steensland's demand that he vacate the premises with
his own demand that Steensland deed the quarter to him. Noel had erected a
house and a barn on the property, without any objection from Steensland,
and the equitable rights thus created proved to be the dispositive evidence in
the eyes of the Court. Citing the 1907 Stewart case, that we have previously
reviewed, the Court decided that the performance of acts constituting
permanent improvement of the land at issue by Noel adequately supported
his version of the true content of the verbal agreement under which he had
taken possession of the quarter, therefore fully upholding a lower court
ruling that Steensland was legally required to deed the quarter to Noel. In the
case we are about to review, the Court again confirms that the statute of
frauds was never intended to enable a grantor to escape any legitimate
obligation to convey land, and it cannot be utilized in such a manner, on the
mere basis that a grantee trusted his grantor and therefore did not insist upon
a written conveyance agreement. The application of the principle of estoppel
here by the Court, in support of the proposition that improvements of value
made by a grantee, under an oral conveyance agreement, can render the
statute of frauds useless to a grantor, would go on to become an important
element in the outcome of many future cases, as we shall observe, and this
premise was expressly reiterated by the Court in Federal Land Bank of
Omaha v Matson, a 1942 case precipitated by an oral lease agreement.
1918 - Rogers owned an unspecified quarter section of cropland in
Gregory County, and he had an adult son who owned an adjoining
quarter section of cropland. The location of these two quarters in
relation to each other is unknown, but that would prove to be
irrelevant, since the issue that would subsequently develop concerning
their land involved only their ownership rights and not their
boundaries. How or when the father and son had acquired their
quarters is unknown, but this was also of no significance, since their
chain of title was never questioned. The Rogers family did not
personally utilize these two quarters, they lived in Iowa, and their land
in South Dakota was cultivated and harvested by tenant farmers.
Together the father and son mortgaged their South Dakota land to the
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Commonwealth Life Insurance Company, as security for a loan of
several thousand dollars that they obtained at this time.
1923 - Rogers and his son were unable to repay their loan on
schedule, so Commonwealth foreclosed upon the two quarters that
they had used to secure the money. Upon the initiation of the
foreclosure action, a one year redemption period commenced to run,
during which time the Rogers had the opportunity to retain their
quarters, if they could come up with the money. Public notice of the
status of this foreclosure was provided, by means of publication in a
local newspaper, as required by law, but since they did not live in
South Dakota, and apparently rarely if ever visited their land, this
form of notice was of no benefit to the Rogers family, so they
remained unaware that foreclosure proceedings against them were
underway.
1924 - Just 4 days before the one year redemption period was due to
expire, Rogers, whose son had died at an unspecified time, was
personally notified of the foreclosure situation by an attorney.
Realizing that he had to act immediately to avoid losing ownership of
the two quarters, Rogers somehow obtained the money required to
redeem the land at issue, and the next day he drove to the nearest
office of the insurance company, which was in Omaha, Nebraska.
Upon arriving, he discovered that Commonwealth had just been
acquired by the Standard Life Insurance Company, so he explained
his situation to the insurance agent who had just taken over the
operation of the insurance office on behalf of Standard, telling the
agent that he did not want to lose the two quarters, and indicating that
he now had the money required to redeem them. After speaking with
the president of the company by telephone about the matter, the agent
agreed that Standard would deed the South Dakota land back to
Rogers, once the company obtained ownership of it by means of a
sheriff's deed, upon the expiration of the redemption period, provided
that Rogers should promptly deliver a bank draft for the amount due
to the attorney who was handling the transaction for the company.
Rogers returned home and obtained the required bank draft the next
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day, and then on the very last day of the redemption period he arrived
in Dallas, South Dakota, where the office of the company attorney
was located, but since the attorney was out of town, he left the bank
draft with a company clerk, and then returned home, in the belief that
the matter had been successfully resolved and the quarters had been
saved for the family. Upon returning to his office a few days later, the
attorney found the Rogers bank draft, but shortly thereafter, Holmes
arrived at the attorney's office and offered to acquire the two quarters
from the company at a higher price, so after informing Holmes that
the company had already made a deal with Rogers involving the same
land, the attorney mailed both offers together to the company
headquarters in Saint Louis, Missouri. Standard directed the attorney
to accept the higher offer that had been made by Holmes, so the
attorney mailed the bank draft back to Rogers, and entered a contract
for deed with Holmes. Upon learning what had taken place
subsequent to his trip to the attorney's office, Rogers filed an action
against Standard, seeking to have the company compelled to convey
the two quarters to him, instead of to Holmes, in fulfillment of the
verbal agreement to that effect, which had been made between Rogers
and the company agent in Omaha. Upon learning of the legal action
that had been filed by Rogers, Holmes filed an action of his own
against Standard, seeking to compel the company to fulfill the terms
of his contract for deed, by conveying the same land to him. These
two legal actions were combined into one, with Rogers being deemed
the plaintiff, Standard being the defendant, and Holmes participating
as an intervener.
Rogers argued that he had a valid conveyance agreement with
Standard, which should be deemed to be legally binding upon the company,
despite the fact that it was unwritten, because both he and the agent in
Omaha, who had represented the company in making the agreement, had the
authority to enter a binding conveyance agreement, and because he had done
everything required of him under that agreement, thereby bringing it within
the performance exception to the statute of frauds, so the company was
legally bound to convey the two quarters to him. Standard, acting as the
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defendant, made no arguments whatsoever, since the company had no
serious stake in the outcome of the dispute, and simply agreed to convey the
land in question to whichever party ultimately prevailed in this litigation.
Holmes, acting in his capacity as a legal intervener, which in effect placed
him in the shoes of a defendant, since his goal was to overcome the rights
being asserted by Rogers, argued that the statute of frauds applied to any
conveyance agreement between Rogers and the Standard agent, therefore no
such agreement could be treated as legally binding, and Standard had at all
times been free to agree to convey the quarters at issue to Holmes, which
had been done, so Standard was legally bound to convey those quarters to
him, under the terms of his contract for deed with the company. The trial
court found that the evidence relating to the oral conveyance agreement
alleged by Rogers was sufficient to justify an estoppel against Standard,
preventing the company from conveying the land in question to anyone else,
after having agreed to convey it to Rogers, confirming his right to a deed
from Standard, and negating the contract for deed held by Holmes.
In several important respects, the controversy that had resulted in this
case was distinctly similar to the one that had resulted in the Stewart case of
1907, previously reviewed herein, which was also centered upon the statute
of frauds, and focused upon the Court's interpretation and implementation of
that important statute governing conveyances of land rights. Three of the
most important factors that had appeared in the Stewart case, which were
present again in this scenario, were the fact that the ownership of an entire
tract of land was involved, so no boundary or description issues were in
play, the fact that there was no written evidence of any kind whatsoever
supporting the purported conveyance agreement, and the fact that the party
opposing the alleged oral agreement made no attempt to deny the actual
existence of that agreement, simply taking the position instead that no
unwritten agreement could control. There were definitely some very
significant differences as well however, such as the fact that in this instance
the real legal battle was waged between two grantees, Rogers and Holmes,
rather between a grantor and a grantee, as is more typically the case, and
also the unusual fact that one of the litigants was a former owner of the
subject property, who was essentially attempting to avoid completely losing
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the land. As was also noted in reviewing the Stewart case, the Court always
takes careful note of the possession status of the land at issue in such
conflicts, and Stewart's possession and investment in the lots he was
acquiring was key to his success, but here that factor provided an interesting
twist, since the Court is normally concerned primarily with determining to
what extent a grantee has taken possession under an alleged conveyance, yet
here that often vital element was missing. Because Rogers had already
owned the land in question for many years, he took no new possession as a
consequence of the alleged conveyance agreement made in Omaha in 1924,
he simply made a payment on the land and returned home to Iowa, trusting
that the two quarters would remain under his control, he never even visited
the land in controversy, nor did he make any new or additional investment in
improving the subject property in any way after the oral agreement, upon
which his rights depended, was made. Rogers did benefit however, from the
important principle, pointed out previously herein in the context of adverse
possession, that any authorized tenant, such as a renter or lessee of any land,
stands in the shoes of his landlord, for purposes of physical possession of all
of the land in question, so the presence of a tenant upon the land is
equivalent to the owner of the land being there in person and making actual
use of the land himself. Nevertheless, the fact that Rogers took no action in
direct reliance upon the alleged oral conveyance agreement presented a
potential flaw in his case, which Holmes no doubt hoped to pounce upon and
take advantage of, but the Court observed that there was another basis upon
which to justify the outcome of this dispute, which it deemed to be even
more crucial than physical possession or improvement of the land under
these circumstances:
“the insurance company ... agreed to deliver to Holmes a
quitclaim deed to the premises. At the time of the execution of
this contract, Holmes had actual knowledge of the equities and
rights of Rogers in the premises and knew that Rogers was in
possession ... his tenant, who was also occupying as tenant the
quarter owned by the estate of respondent's son, had more than
100 acres of each tract under cultivation ... appellant was not a
purchaser in good faith of the premises ... respondent has been
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ready, willing and able to pay the full amount due for
redemption ... respondent relied upon the statements made by
the insurance company ... because of such reliance respondent
failed to redeem from such foreclosure ... the year for
redemption expired ... a valuable right had in the meantime
been lost ... by reason of such statements ... the company was
estopped to deny respondent's rights ... respondent was the
equitable owner ... the insurance company held the legal title in
trust for respondent ... the insurance company was bound by the
acts of these corporate agents ... appellant contends that the
agreement ... was, at best, simply a parol agreement ... such a
one as comes within the statute of frauds ... but this does not
abridge the power of any court to compel the specific
performance of any agreement ... an oral contract for the sale of
real property, if partly performed, may be specifically enforced
... To sanction the taking of such an unconscientious advantage,
through the forms and the technicalities of law, would be to
sanction what virtually amounts to fraud ... It would be an
equitable fraud to permit the insurance company or appellant to
interpose the statute of frauds."
Just as in the Stewart case, the Court again dealt masterfully with the
unusual conditions that were presented here, properly recognizing that the
evidence brought this controversy within the statutory exception to the
statute of frauds, allowing the Court to analyze the legal significance of all
the evidence in totality, and produce the most equitable result. The critical
one year redemption period, applicable to mortgage foreclosures, proved to
be the key element operating in favor of Rogers, because during that period
he was actually still the owner of the land in question, despite the fact that a
foreclosure had been declared against him, but once that year expired he had
lost the last of his original rights to his land, making the Court's impression
of the evidence pertaining to the rapidly unfolding events of the last few
days of that year especially important. Whether Holmes was just a local
farmer who wanted to acquire more land or a speculator who made it his
business to acquire distressed properties is unknown, but in the eyes of the
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Court that made no difference in this case. The decisive factor operating
against Holmes was the highly powerful principle of notice, which is always
a crucial factor when the validity of competing conveyances of land rights is
at issue, and in the view of the Court, the fact that Holmes was expressly
told about the rights of Rogers to the land that Holmes was seeking to
acquire robbed Holmes of any opportunity to obtain the protection of the
Court as an innocent party acting in good faith. The fact that Holmes held
written evidence of his acquisition, in the form of a contract for deed, while
Rogers held no written rights, was of no such use or benefit to Holmes as he
must have imagined it would be, because the validity of his contract was
effectively nullified by the evidence that it had been obtained in bad faith,
since it was very plain to the Court that Holmes had waited for Rogers to
depart and then seized the opportunity presented by his absence to tempt
Standard to betray Rogers, which the company had done. The use made here
by the Court of the immensely powerful equitable tool known as estoppel
forms an excellent example of the manner in which that principle is
frequently used in settling land rights conflicts. At least 3 different parties
representing Standard, the company president, the agent in Omaha, and the
attorney in South Dakota, were all well aware that the company had agreed
to convey the land in question to Rogers, so although there was no
documentation of that agreement, the company had made a commitment to
Rogers, which was subject to protection through estoppel. Therefore, once
the promises made to Rogers had caused him to relinquish his legal rights,
by crossing the time barrier represented by the expiration of his redemption
period, without insisting upon a deed from the company, a legally binding
state of trust had been created, and Standard was no longer at liberty to
consider or accept any other offers on the quarters, such as the one made by
Holmes. Since all 3 essential elements of a legitimate conveyance agreement
were present, the identity of the parties, the identity of the land, and the price
to be paid for it, despite the absence of any written evidence, the Court fully
upheld the ruling of the lower court, deeming the Rogers agreement to be a
valid exception to the statute of frauds, since it was undisputed that the
agreement actually existed, which is always the matter of utmost importance
to the Court, regardless of the manner or form in which such an agreement
may be evidenced.
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HOWE v SHEPARD (1929)
Our next adverse possession case, which contains an intricate and
fascinating backstory, returns us to adverse possession in the context of a
true title conflict over an entire property, a full quarter section in this
instance, as opposed to a boundary dispute, and serves as an excellent
example of the Court's treatment of situations involving land that has been
utterly neglected on a long term basis, amounting to genuine abandonment
by the holder of the legal right of ownership of the land. In addition, this
case focuses directly on the quality or intensity of land use required to
successfully maintain adverse possession, and it also presents a scenario in
which all of the participants are members of the same extended family, again
demonstrating, as we have noted in reviewing previous adverse possession
cases, that familial relations do not necessarily prevent adverse possession.
The presence of family members in a land rights battle can have significant
repercussions however, as illustrated by the 1913 case of Wallace v Dunton,
a comparable controversy, in which a family member was unable to rely
upon adverse possession. In that case, for 15 years Wallace and his wife
were the sole occupants of a tract of land that had been acquired by
Wallace's brother in 1887, but had never been occupied, or even visited, by
Wallace's brother, who was an absentee owner, living in another state.
Wallace's brother died in 1897, and Wallace died in 1902, but his widow
continued living on the tract for another 8 years, until a daughter of her late
brother-in-law claimed to be the true owner of the land, as the heir of
Wallace's brother. Wallace's widow maintained that she was entitled to a
decree that she was the owner of the tract at issue, by virtue of her
continuous occupation of it from 1887 to 1910, but the Court upheld a lower
court decision denying her claim, agreeing with Dunton that none of the
possession of the tract in question, by either Wallace's widow or Wallace
himself, had ever been adverse to Wallace's brother. Since possession by one
or more family members, of land that is owned by another family member or
members, is presumed to be subordinate, the family member making the
adverse claim has an elevated burden, to prove that the possession was
distinctly adverse in nature, and Wallace's widow, having conceded that she
always knew the land she was living on stood in the name of her late
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brother-in-law, could not meet that burden. The strong inclination of the
Court to support established land use was evident in 1920 however, in
Cochrane v McCoy, a case in which McCoy was unable to prevail on the
basis of adverse possession, because his period of adverse use of the land at
issue had been interrupted short of completion in 1903 by the filing of
Welch v McCoy, a case which dragged on for 15 years, until finally being
disposed of by the Court in 1918. Although both original litigants were dead
by 1920, the legal battle was brought before the Court again by Cochrane at
that time, as the administrator of the estate of Welch, against McCoy's
widow, whereupon the Court fully upheld a lower court ruling awarding the
disputed property to McCoy's widow, as the occupant of the land in
controversy, based not upon adverse possession, but upon laches, the ancient
equitable principle which dictates that land can be lost by an owner of record
as a consequence of an unjustifiable delay, in asserting his land rights, or in
acting upon his existing land rights. In resolving the case we are about to
review, the Court rather ironically bases it's decision upon adverse
possession, despite the fact that the adverse possessor was personally absent
from the subject property for 27 years, clearly making the vital point that
every adverse possession case must be addressed as a unique set of
circumstances.
Prior to 1885 - Howe was the owner of an unspecified quarter section
situated in Edmunds County. When or how he had acquired his land is
unknown, but it appears that he and his wife were among the early
settlers of the area, so he was presumably an original entryman.
Howe's wife was from Vermont, and in her correspondence with her
family she apparently encouraged those she knew in Vermont to come
out west and settle around or near the Howe farm.
1885 - The father of Shepard, who was apparently a member of the
extended family of Howe's wife, arrived from Vermont at this time
and filed a claim upon a quarter section adjoining the one owned by
Howe. What use Shepard's father made of the quarter section claimed
by him, if any, is unknown, there is no indication that he ever actually
lived on the land or erected any improvements on it, he may have
actually lived with the Howes, on the quarter owned by Howe, and
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used the adjoining quarter that he was claiming only for cropland or
timber purposes, if he used it at all. Shepard and his brother and sister
were already alive at this time, and they were living in Vermont, their
father had left them behind and gone to South Dakota alone, but
whether Shepard and his siblings were still children, or were already
adults at this time, is unknown.
1888 - Shepard was declared legally incompetent and a legal guardian
was appointed to care for him. Shepard was living with relatives in
Vermont, he never came to South Dakota, and neither did his brother
or his sister.
1890 - Howe and his wife were divorced and Howe left South Dakota,
spending the next several years living in Minnesota and North Dakota.
He did not sell his quarter section however, he remained the owner of
it, but whether or not he ever returned to Edmunds County prior to
1917 is unknown. O'Ban became the occupant of the Howe quarter
this time, and he continued to occupy and use the land just as Howe
had, acting as Howe's tenant, until Howe eventually returned to
Edmunds County in 1917. Shepard's father was still in South Dakota
at this time, but he was apparently no longer occupying or using either
the Howe quarter or the adjoining quarter that had been claimed by
him. Howe evidently told O'Ban that he could use both quarters,
treating the Shepard quarter as if it were part of the Howe farm, and
O'Ban did so, although his use of the Shepard quarter was very
minimal, and he never erected any improvements on it.
1892 - Shepard's father left South Dakota, never to return, he
apparently wandered around the country for an unspecified number of
years, falling out of touch with his family and friends, before
eventually ending up back in Vermont, where he remained until his
death in 1917.
1899 - Howe submitted a statement to the GLO, indicating that the
quarter section that Shepard's father had entered in 1885 had been in
continuous use by Howe and his tenant O'Ban for several years,
apparently with the hope of obtaining a patent for that additional
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quarter. The GLO issued the patent, but since Howe had apparently
informed the GLO that he believed Shepard's father to be dead, the
GLO issued the patent to the heirs of Shepard's father. Howe then
contacted Shepard's guardian in Vermont, and asked him to quitclaim
the newly patented quarter to Howe. The guardian sent Howe a very
crude quitclaim deed that was apparently written on a single sheet of
plain paper and was not on any legal form, purporting to convey the
interest of Shepard in that quarter to Howe. There is no indication that
Howe ever contacted Shepard's brother or sister, or ever attempted to
acquire their interests in the Shepard quarter, but Howe began paying
the property taxes on that quarter along with his own quarter at this
time, and he continued to do so henceforward.
1917 - Howe finally returned to South Dakota, after an absence of 27
years, and he apparently once again took up residence on his old farm.
The adjoining quarter section that had been quitclaimed to Howe 18
years earlier was evidently still completely unimproved and vacant, it
had been used only as pasture land, and as a source of wild hay and
timber, by O'Ban during his long period of tenancy on the Howe farm,
but no one else had ever attempted to make any use of the Shepard
quarter, nor had anyone ever attempted to interrupt the use that was
made of it by O'Ban.
1920 - By some unknown means, Shepard and his siblings, who were
evidently all still living in Vermont, first learned that the quarter
section that their late father had originally claimed 35 years earlier
had been patented to them, as his legal heirs in 1899, and they
apparently contacted Howe, questioning the ownership status of that
quarter. In response to their challenge, Howe filed an action against
them, seeking judicial confirmation that he had become the sole
owner of the quarter that had been patented to them.
Howe did not assert that the 1899 quitclaim deed that he held was
necessarily a complete conveyance of the land in question to him, but he
maintained that he had justifiably relied upon it as such, and he argued that it
therefore represented valid color of title, supporting his claim of adverse
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possession, even if it should be determined that the quitclaim deed was
legally invalid or otherwise insufficient to convey complete ownership of the
quarter in question to him. He further argued that although his use of the
quarter in controversy had been minimal, he had used or otherwise held
possession of the entirety of it for a period of time that was more than
sufficient to meet the statutory requirements for adverse possession, either
with or without color of title, since his ownership and possession of that
quarter had never been challenged by anyone at any time. Shepard and his
siblings argued that any use of their quarter by Howe, or by O'Ban as his
tenant, had been legally inadequate to satisfy the requirements of adverse
possession, being insufficient to provide notice to the world that ownership
of the land at issue was being claimed by Howe. The heirs also maintained
that the 1899 quitclaim deed, having been issued to Howe by Shepard's
guardian, who never held any legal interest in the Shepard quarter, was
worthless and ineffective as color of title, so they were still the owners of the
quarter in dispute, by virtue of the GLO patent that had been issued to them.
The trial court agreed with the heirs of Shepard's father that neither Howe
nor O'Ban had ever made any significant use of the Shepard quarter, denying
that there could be any validity in either Howe's claim of adverse possession
or his quitclaim deed, therefore awarding ownership of the Shepard quarter
to the heirs, based on their patent.
The exceedingly unusual circumstances of this case may limit it's
applicability today, yet the Court's treatment of this scenario provides great
insight into how the Court views some of the most important aspects of land
rights, and the principles that control the Court's decisions in contests over
the ownership of land, since it presents a uniquely interesting mix of the
elements of intent and adverse possession, and illustrates their power. With
his testimony regarding the long sequence of conditions and events leading
up to this controversy, Howe attempted to demonstrate that it had been his
intent from the outset, in 1885, to acquire the Shepard quarter himself, to
expand his existing farm. He testified that Shepard's father had come to
South Dakota and claimed the quarter in question only as a favor to Howe's
wife, since he was a relative of hers, to enable the Howes to acquire another
quarter through the use of his name, as a separate claimant of land, so
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Shepard's father had never intended to keep the quarter claimed by him, he
had intended only to reside with the Howes and assist them for a short time
and then move on, as he had done. The story told by Howe fit very well with
the history of events, since it explained why Shepard's father had strangely
left the area just a few years after filing his land claim, without ever making
any serious effort to use the quarter at issue as his own land, as well as why
he apparently never cared about that quarter thereafter, and since Howe was
the only witness with complete knowledge of everything that had happened
since 1885, his testimony was understandably very persuasive to the Court.
Therefore, the adverse possession claim made by Howe was seen by the
Court in the context of a lack of intent to establish or maintain any interest in
the land at issue on the part of Shepard's father, who apparently believed that
he had abandoned his claim to that land, and evidently never learned or
realized that the quarter had later been patented under his name. So this
adverse possession case presented a bizarre situation, in which the owner of
record of the land in dispute lived for several years, and then died, without
ever even knowing that he was actually the legal owner of the land in
question, nor did he ever know that it had been patented to his heirs, because
he was erroneously thought to be already dead when the patent was issued,
nor did he ever know that it had been quitclaimed by his son's guardian, so
he died without ever having any opportunity to assert any claim to that
quarter. Nonetheless, the thrust of the testimony provided by Howe, the
Court realized, was that Shepard's father had never intended to take
ownership of the quarter in controversy for his own use or purposes to begin
with, and he had expected it to become part of the Howe property from the
outset, so presumably he would have quitclaimed it to Howe himself if he
had still been in Edmunds County in 1899. Moreover, Shepard's father, the
evidence suggested, would not have objected to the quitclaim deed issued by
Shepard's guardian if he had known about it, and presumably the guardian
understood that, which explains why the guardian complied with Howe's
request for the quitclaim deed, and why he apparently never saw any need to
mention that deed to the heirs or anyone else. For these reasons, the Court
elected to simply disregard and bypass the issues involving the quitclaim
deed, deeming it to be dubious, but finding that neither it's validity nor it's
legal effect was essential to the outcome of this conflict, before moving on
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to the controlling question, which was the validity of Howe's claim of title
through long term adverse possession, referenced by the Court on this
occasion as title by prescription:
“It is not contended that the deed ... actually conveyed to
plaintiff the title to, or any interest in, the premises ... but
plaintiff ... argues that the deed constitutes color of title ... for
the 10 year statute, good faith ... is specifically required ... but
for ... the prescriptive statute (20 years) there is no requirement
for good faith on the part of the claimant ... we turn to the
plaintiff's claim to title by prescription and find him occupying
the premises for a period of more than 20 years ... The only
question ... is whether the plaintiff's possession of the premises
was of a character sufficient to meet the requirements ... title by
prescription, as conceived in the common law, arose from a
possession which was so visible and continuous and notorious
that the true owner was presumed to have had knowledge
thereof and by his silence to have acquiesced ... plaintiff's
possession was sufficient if the land was used for the purposes
of husbandry ... the particular quarter ... was open, raw,
uncultivated and unimproved ... plaintiff, through his tenants,
used the premises continuously for the purpose of cutting hay
and grazing of live stock ... the tenants cut hay some years and
grazed cattle some years ... husbandry in this state ... is the
raising of live stock and the cutting of prairie hay and the
grazing of live stock ... use of land for that purpose is sufficient
to constitute adverse possession."
The first important concept expressed here by the Court, is the fact
that good faith on the part of an occupant of land is the fundamental basis for
the 10 year statute of limitations, which effectively makes it easier for a
party who used or occupied land, that they did not hold full or complete
legal ownership of, to secure legal title to that area, by proving that their
claim has a clear basis in good faith, and this is typically shown by means of
a deed that is ostensibly good, but is legally flawed in some way, creating
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color of title. This shorter limitation period stands in clear distinction to the
20 year period, which is known as the full prescriptive period, that applies
when the possession in question results from a plain abandonment of land,
followed by surreptitious use of that land by an adjoining land owner, such
as Howe, who thereby becomes an adverse or prescriptive claimant. It was
this comprehensive 20 year statutory period that the Court properly turned to
here, thereby washing away the issues relating to Howe's quitclaim deed,
since situations of this kind are the very reason for the existence of the 20
year period of limitation, which serves to silence long forgotten or
abandoned claims of land ownership. The need for documentary evidence
that applies to the 10 year period does not apply to the 20 year period,
because the longer period stands as an absolute bar, regardless of whether
the land at issue can be shown to have been held in good faith or not, in
judicial recognition of the fact that after 20 or more years relevant evidence,
such as proof of various important facts relating to specific people or
specific conditions on the ground, can often become very difficult for the
litigants to obtain and present. In addition, acting in combination with this
difficulty in obtaining evidence, 20 years typically represents an inordinate
and inexcusable delay in asserting land rights, in the eyes of the Court,
justifying legal action that has the effect of punishing the record owner for
his extreme procrastination, particularly when that delay takes place in the
face of open and productive use of his land by others, without any express
license from the owner of record to make such use of his land. Because the
land in controversy here had been patented into private ownership in 1899,
the prescriptive clock had begun ticking at that date, and adverse rights to
the land had potentially begun to accrue from that moment, so in 1919 the
rights of the heirs of Shepard's father, as patentees, had potentially become
absolutely useless to them and been legally extinguished. Had either
Shepard's father or his heirs acted sooner, filing their action in 1918 or
earlier, the evidence and various details relating to the quitclaim deed would
have been critical to the outcome, but because they did not file their action
against Howe until 1920, in order to prevail Howe needed only to prove that
the quarter in question had been used in a manner that was genuinely
adverse since 1899, which would place his possession within the protection
of the 20 year statute, making the true basis for his possession legally moot
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and irrelevant.
The Court was quite understandably and justifiably unimpressed with the
position taken by the heirs, because although Howe's claim was certainly a
very weak one, since he could not prove that any permanent, obvious or
visible use had ever been made of the Shepard quarter, and there was no
evidence that there were ever any buildings situated on it, nor that any of it
had ever been fenced at all, the position in which the heirs stood was even
weaker. As noted above, the Court was fully cognizant that Shepard's father
had never really earned the quarter in question to begin with, since he had
made no effort whatsoever to complete his obligations as a patentee, and
once the quarter had been granted by the United States, both Shepard's father
and his children had slept upon any rights that they may have had, to such an
extent that none of them had ever even visited the location. No legitimate
patentee, functioning in good faith and in compliance with the law, the Court
knew, could be completely unaware of the existence of a document as vital
to his land rights as his own patent, unless he truly had no interest in the
land, and no longer cared about it in any way, by the time the patent was
issued. This evidence strongly supported the testimony of Howe that
Shepard's father had never wanted or intended to acquire any land, and that
he had left the area believing that he had established no land rights, thereby
voluntarily abandoning any such rights that he may have acquired,
explaining why he had never even bothered to check to see if any such rights
existed in the future. In reality, the Court was well aware, a great many
patents had been mistakenly or erroneously issued all over the west, as a
result of countless land acquisition schemes that had either succeeded or
fallen apart, as the one involving the Howes and Shepard's father apparently
had, when Howe's marriage had turned sour and all the parties had gone
their separate ways in 1890, so its not surprising that the Court saw no
reason to honor such a patent, under the circumstances of this case, and had
no problem effectively approving it's nullification. In fact, if anyone
involved actually deserved the patent, it would be Howe, since he was the
only party who had adhered to the spirit of the patenting laws, by remaining
faithful to the land and insuring that it was actually utilized in some manner,
even during the extended time period throughout which he was personally
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absent from the area. Having determined that the uses that had been made of
the Shepard quarter, by Howe himself, and by O'Ban as Howe's tenant, were
legitimate uses, fully suitable and completely appropriate to the character of
the land itself, the Court reversed the ruling of the lower court, silencing the
claims of the heirs and confirming that Howe owned the former Shepard
quarter. Undoubtedly the heirs could be portrayed as victims in some sense
under this result, particularly if they were children during the prescriptive
period, and also because Shepard was apparently an invalid, but if Shepard
was indeed a victim, he was primarily a victim of the negligent behavior of
both his own father and his guardian, who never made any effort to protect
the land rights that had been created by the patent on Shepard's behalf. In
that respect, this case stands as a superb reminder of the fact that the law
typically rewards productive behavior and utilization of land, while it
distinctly frowns upon both negligence and indolence, especially when they
appear in the arena of land rights, and fate had simply placed the unfortunate
heirs of Shepard's father on the wrong side of that equation.
GUSTAFSON v GEM TOWNSHIP (1931)
The case we are about to review constitutes a legal battle over the
legitimacy of a financial compensation claim, amounting to an inverse
condemnation action, in which a land owner demands payment for an
alleged sacrifice of rights on his part, typically after a certain event has taken
place, that has the effect of reducing or eliminating some of his rights for
some public purpose, and like so many cases of that variety, land rights are
at the core of this controversy. While boundaries are not in question here,
location itself is nonetheless a vital issue, and the outcome here points to the
significance of understanding the true nature of the land rights that exist in
close proximity to section lines. The private land owner comes out a loser in
this instance, although neither he nor his predecessor, who had created the
problematic situation, had done anything wrong, highlighting the increasing
emphasis placed by the Court on the protection of public rights, as it took
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judicial notice of the development of modern modes of transportation, which
were revolutionizing public travel and human interaction in general at this
time. Another interesting element of this case appears in spatial terms, as the
Court divides and defines the private rights in question vertically as well as
horizontally, thereby effectively disconnecting even objects that have grown
out of the earth from the land itself, so that rights related to such items born
of the earth can be legally severed from the land and subjugated to the
superior rights that are legally embedded in the land itself. More than 70
years after this case was decided, a virtually identical conflict would play out
similarly, in the 2002 case of Johnson v Marion Township. In that case,
Johnson acquired a tract that was bounded by a section line bearing a
roadway, and within his land stood 2 majestic Cottonwoods, which he
naturally enjoyed and highly valued. Shortly after occupying his property
however, Johnson observed some of his neighbors removing trees that were
situated close to the roadway from their properties, and he asked them why
they were doing so, at which point he learned that the township had ordered
the removal of all trees within the section line right-of-way, which would
include his trees as well. Evidently unaware of the precedent established by
the Court in the Gustafson case, Johnson decided to fight the township order
by contesting the township's complete control over the right-of-way, in an
attempt to preserve his trees, failing to realize that the fate of his trees had
been sealed for decades, long before he was even born. Citing the 1894
rehearing of the Van Antwerp case, previously reviewed herein, on the issue
of township authority, the Court upheld a lower court decision that Johnson's
trees must go, on the basis that the township had both the authority and the
responsibility to order the removal of any and all objects within the public
right-of-way, and Johnson was entitled to no compensation for his loss, since
he was charged with knowledge that his trees were situated within the
publicly controlled right-of-way, at the time he acquired his property. In
addition, this case included some uncertainty over whether or not Johnson's
trees were truly within the section line right-of-way, and he claimed that one
of them was not, based only upon his own measurements from the centerline
of the road however, as he neglected to obtain a survey. Noting that the
right-of-way was fenced on both sides, and the fences were 66 feet apart,
and both trees were between the fences, the Court concluded that Johnson
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had failed to prove that the trees were not within the section line right-ofway.
1881 - A quarter section lying in the east half of an unspecified
section, located in Gem Township in Brown County, which had been
surveyed and platted by the GLO at an unspecified date, was settled
by the predecessor of Gustafson. The corners and lines of the section
in which this quarter was located were presumably still reasonably
well marked at this time, so the location of his east boundary was
apparently clear to this entryman, but whether or not he built any
fences, or physically identified his boundaries in any other way, is
unknown, and what actual use he made of his quarter is also unknown.
1890 - Gustafson's predecessor decided to plant a row of trees along
his east boundary, apparently extending along most of that line, if not
the full length of that half mile. The type of trees that he planted is
unknown, presumably they were either ornamental, or they were
intended for purposes of shade, or as a windbreak. Whether or not any
kind of roadway existed at this time upon the section line forming the
east boundary of this quarter is unknown, but Gustafson's predecessor
chose not to plant the trees directly on the section line, although he
apparently knew where that line was located, presumably either
because a trail or path of some kind centered on the section line was
already in use, or because he anticipated that a road might be opened
in that location in the future. He evidently wanted these trees to
remain as a permanent improvement to the land, so he carefully
placed all of them within a strip lying more than one rod, but less than
two rods, west of the section line. Therefore, all of the trees were
situated inside the section line right-of-way, but they were all set back
far enough from the section line to allow unimpeded travel upon the
section line, by means of the typical modes of travel that were in use
at this time.
1891 to 1929 - During this period, the section line in question came to
be used as a public roadway with steadily increasing frequency, while
the trees in question steadily matured, becoming fully grown and
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fairly large, but there is no indication that anyone ever complained
about the trees, or that they ever represented any real obstacle to the
use of the section line right-of-way for purposes of travel by the
public, or that any other concerns were ever raised about them. At an
unspecified time during this period Gustafson acquired the quarter
section bearing these trees, but what use he made of the rest of this
quarter is unknown, he may or may not have resided in this location.
1930 - Apparently in response to public demands that this section line
roadway needed to be improved, the Supervisors of Gem Township
made plans to widen it, but no dimensions defining either it's existing
width or it's proposed width are known. To facilitate this project, the
township also passed a resolution stating that Gustafson's trees
represented a public nuisance, and Gustafson was ordered to remove
all of them, but he refused to do so, whereupon a contractor was hired
by the township to do the job, and most if not all of the trees were cut
down. What was done with the wood after the trees were cut is
unknown. In response to this, Gustafson filed an action against the
township and the tree removal contractors, seeking compensation for
what he considered to be compensable damage to his property.
Gustafson argued that the trees had been properly planted within the
section line right-of-way, under the laws that had been in effect at the time
they were planted, so when he acquired his property he had acquired
complete ownership of the trees, as permanent improvements to his quarter
section, therefore he could not be legally required to relocate or destroy the
trees, or to allow them to be relocated or destroyed, without proper
compensation being made to him, through the process of condemnation.
Gem Township argued that although Gustafson did own the trees and the
ground in which they were planted, it had the authority to exert complete
control over the full width of the section line right-of-way, and it was not
obligated to tolerate any uses of any portion of the section line right-of-way
that interfered in any way with the public interest in that right-of-way, so the
township had been fully justified in destroying all of the trees, without
compensating Gustafson for them in any manner. The trial court held that
Gustafson had the right to maintain trees within that portion of the section
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line right-of-way on his land lying more than one rod from the section line,
so although the township had the authority to remove the trees, or to order
them to be removed, compensation was due to Gustafson for the damage to
his property that their removal represented.
While we have already seen, from a number of the section line rightof-way cases that we have reviewed, that the public right-of-way nominally
created along with every section line has always been very strongly
protected by the Court, as a highly valuable public asset, this case brings us
into the modern era of automotive travel, and here we begin to see the Court
encounter issues that are associated with the section line right-of-way in that
particular context. When the section line right-of-way originally came into
existence, no automotive issues were yet present or contemplated, the only
objective at that time being the creation of public pathways suitable for
travel on foot, on horseback, or by horse drawn wagons or carriages.
Therefore, the language of the original legislation outlining the public right
of use in relation to section lines was naturally quite basic, just as the
language of RS 2477, the 1866 federal statute from which the section line
right-of-way concept sprang, was exceedingly basic, so much so that it
would go on to precipitate innumerable intense disagreements all over the
west, concerning the details of the legislative intent that gave birth to RS
2477 and what it's controlling effect should be. When Gustafson's
predecessor planted the trees, the Court observed, the section line right-ofway had already long been in place, and the quarter at issue was therefore
unquestionably subject to a public right-of-way, one chain in overall width,
centered on the section line, thus the east 33 feet of Gustafson's quarter had
been legally burdened from the moment of it's creation, for the benefit of the
public. Gustafson however, correctly pointed out that another law, passed in
1873 and still in effect in 1930, had bestowed upon all land owners, such as
his predecessor and himself, the right to use a strip one rod in width, being
the half of the 33 foot easement on his quarter lying farthest from the section
line "for the purpose of cultivating the growth of timber and trees", and the
Court acknowledged that the law relied upon by Gustafson was applicable to
his land. In addition, since no evidence pertaining to the actual section line
location was presented by either side, the Court recognized that the location
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and boundaries of the relevant section line right-of-way were not in dispute,
so there was no reason to suspect that any of the trees had been any closer to
the section line than the law allowed them to be, and the township conceded
that in fact they had all been at least one rod west of the section line.
Therefore, this conflict, like many if not most other disputes over land rights,
included no boundary component, since the locations of both the right-ofway and the trees at issue were known and agreed upon, the only
controversy was over the legal effect of the fact that two valid laws existed,
the one creating the section line right-of-way, and the one permitting trees
inside it, which overlapped to the extent of one rod, along the outer edge of
the section line right-of-way. So the Court understood that it's task was
simply to define the scope or nature of the related public and private rights
that existed under these particular laws, and to that end, harkening back to
the 1891 Wells and Smith cases with which we began our study, the Court
reiterated that:
“all section lines in this Territory shall be and are hereby
declared public highways ... two statutes were in effect when
plaintiff's land was entered ... The effect of the federal statute
was to dedicate to the public a right-of-way over public land for
highways when the same were properly designated by authority
of the Legislature; and the effect of the Territorial Act of 1871
was to accept such dedication and designate the location of such
highways ... When plaintiff's grantor entered ... two rods in
width along the section line was burdened with an easement in
favor of the public ... the Legislature could not legally
appropriate said ground to any use incompatible with it's use for
highway purposes ... to occupy and use a strip of the right-ofway for the growth of timber ... would be incompatible with it's
use for highway purposes, and the very most that the
Legislature could grant would be a mere license revocable by
proper authority ... the town supervisors were strictly within
their right in removing the trees ... the court was in error in
granting ... damages."
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Just as in the earlier section line right-of-way cases that we have
reviewed, the Court again adamantly protected the section line right-of-way
as an absolutely essential public right, having priority and supremacy over
anything that might come into conflict with it, including any subsequent
legislation that might be interpreted to betray, to some degree, the rights of
the public to that precious one chain strip, and here the Court made it clear
that such protection would be diligently carried to the full extent of that
width. The trial court had actually arrived at the same conclusion as had the
Court, regarding the fate of the trees themselves, so there was no judicial
disagreement over the fact that the township had the authority to take out the
trees, the key difference was over the need for compensation to private land
owners such as Gustafson for the intrusion upon his property rights that was
manifested in the destruction of the trees. The Court realized of course that
all owners of property situated in a position such as that of Gustafson, within
any given section, own all the land up to the section line itself, and the rightof-way is merely an easement over their land, yet so crucial to society is the
section line right-of-way, in the view of the Court, that all land owners must
know that any use they choose to make of such an area within their property
is subject to termination under the law, and they can expect no compensation
for their cessation of any such private use of that public right-of-way. The
Court also here drew a line clearly dividing the trees, although they were
growing out of the ground, from the land itself, treating the trees as mere
improvements to the land, no different from a building or a fence, rather than
treating them as being part of the land, so the fact that Gustafson owned the
land that the trees were growing from, gave him no implicit right to maintain
them in that location, in defiance of the public will, desire or need to utilize
the entire section line right-of-way. To clarify the relationship of the rights
claimed here by Gustafson to the rights established by the creation of the
section line right-of-way, the Court very appropriately classified the rights of
Gustafson, under the law that he had pointed out, as being merely a license,
which is in fact a mere privilege, and not a true right at all, being constantly
subject to revocation, contrary to the permanent legal character of an
easement. Since Gustafson had not presented any issue concerning the
veracity of the immediate need for a wider roadway, that was alleged by the
township, and he had conceded that the actual removal of the trees had been
330
justified, maintaining only that he was entitled to compensation, the Court
reversed the decision of the lower court only on the compensation issue,
stating that while Gustafson did own the wood itself, and it should have been
left on his property if he wanted it, he was entitled to no other form of
remuneration. The Court may have understood that this case marked the
dawn of a new era, featuring more intense scrutiny of the varying uses of the
section line right-of-way by private owners that had generally been tolerated
in the past, and with this decision the Court began gearing up to effectively
defend the section line right-of-way in the age of modern high speed travel
and advanced technology, as we shall see moving forward.
LABORE v FORBES (1931)
By this time, 12 years had passed since the Court had last been
confronted with an adverse possession claim that required the Court to
contrast and assess the value or significance of established physical
boundaries with the merits of a PLSS retracement survey indicating a
materially different boundary location. Although the integrity and overall
quality of resurveys was undoubtedly developing and improving during this
period, the survey placed before the Court on this occasion apparently left
the Court unimpressed, and unfortunately still mindful of it's many well
documented previous encounters with inadequate resurveys, with the result
that the Court remained highly skeptical of the legitimacy of such surveys at
this point in time, leading the Court to continue to view adverse possession
as a preferable means of boundary resolution. As we have previously
observed, the Court had already approved the concept of turning to adverse
possession for purposes of the adjudication of boundary disputes, due to the
rapidly diminishing availability of original survey evidence, as civilization
swept across the great plains, and we will look on as the Court extends the
application of adverse possession to the interior lines of a section in this
instance, despite being fully aware that the adversely claimed line is of
highly dubious origin, in relation to a quarter section line. Aside from any
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issues pertaining to the validity of the survey work however, having
determined that the survey will not control the outcome, we will watch as
the Court proceeds to squarely address 3 fundamental objections to the use
of adverse possession as a means of boundary determination, systematically
dismissing each of them on the basis of existing legal authority. Perhaps the
most frequently raised of these objections are the so-called "mistake
doctrine" and the related concept of "subjective intent", both of which seek
to place controlling emphasis upon the mindset of the adverse possessor, as
opposed to the visible physical evidence of established boundaries on the
ground. Quite predictably, the defendant here learns the same lesson that
was learned by Sullivan in 1919, and which would become clear to many
others in future cases, that the Court will invariably focus on objectively
evaluating all existing boundary evidence, and is typically unpersuaded by
suggestions that either past errors or mistaken beliefs, relating to boundary
locations, should be treated as controlling or limiting factors with respect to
adverse possession. In concluding that such factors as mistaken personal
opinions and measurement errors are typically irrelevant to adverse
possession, the Court here also goes on to clarify that even statements
openly made by an adverse possessor, acknowledging the questionable
nature of a disputed boundary, do not necessarily foreclose his right to
successfully maintain adverse possession up to a such a line, since a
boundary that stands visible and undisturbed for the statutory period
typically renders such considerations moot. Most notably however, in this
case the Court takes an especially clear and decisive stance on the matter of
privity, which is essential to the validity of the concept of tacking the rights
of successive adverse parties together. In so doing, the Court places it's
reliance upon the basic principle that the strongest controlling element in all
conveyances of land or land rights is intent, and the highest and strongest
evidence of the intentions of the parties to any conveyance is provided by
the existing conditions on the ground at the time of conveyance, since there
can be no clearer source of notice to all parties than that which is supplied
when a grantee occupies and utilizes the land that has been granted to him,
without objection from anyone, up to the boundaries that have been shown
to him by his grantor.
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Prior to 1902 - Section 4 in a certain township in Kingsbury County
was settled, and the north half of the section was put into use as
cropland. How much time passed between the subdivision of this
township by the GLO and the arrival of the earliest settlers is
unknown. Who the first occupants of the northeast and northwest
quarters of the section were is also unknown, but when they initially
broke the land, they evidently reserved a strip upon which to toss the
rocks that they encountered and removed while plowing, and this strip
eventually came to form a line running north and south, more or less
through the middle of the north half of the section. Whether or not any
effort was made by these original parties to locate the north and south
quarter corners of the section, and to deposit the rocks along the
quarter section line, is unknown as well.
1902 - Jackson, who was the patentee of Lot 3 in Section 4, placed a
house near the northeast corner of his land, and he also built a fence,
on or near the aforementioned rock line, which he apparently believed
to be the quarter section line forming the east boundary of Lot 3.
Whether or not Jackson had any knowledge relating to the location of
the north quarter corner of Section 4 is unknown, there is no
indication of how Jackson decided where to situate his house.
1904 - Gonsted acquired Lot 3 from Jackson and he continued to treat
the rock line as the east boundary of Lot 3, just as Jackson had,
cultivating his land up to the fence. Presumably the remainder of the
land in the north half of the section was all still under cultivation as
well, by the other original settlers or their successors.
1905 - Labore acquired the rest of the northwest quarter of Section 4
and he continued the cultivation of that entire area. How Labore
determined where any of the boundaries of his land were located is
unknown, since there is no indication that any section corner or
quarter corners monuments were ever found anywhere around the
section, but Labore apparently experienced no boundary conflicts with
Gonsted or with any of the other parties who owned the land
surrounding Labore's land at this time. Labore noticed the line of
rocks and he adopted this line as the east boundary of the southeast
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quarter of the northwest quarter. Who owned the northeast quarter of
the section at this time is unknown, but the rock line had evidently
always been accepted and treated by the land owners on both sides of
the quarter section line as their boundary, so Labore's use of all of the
land on his side of that line went unquestioned.
1908 - Labore acquired Lot 3 from Gonsted, making Labore the
owner of the entire northwest quarter. There is no indication that any
surveys had ever been done in Section 4, subsequent to the original
GLO survey that had created it, and no survey was done at this time
either, Labore and all of his neighbors apparently accepted the
existing visible boundaries as genuine, definite and binding, so no
boundary issues arose at this time.
1909 to 1920 - Labore continued to use the northwest quarter
throughout this period without incident. At an unspecified time, either
during or prior to this period, Forbes acquired the northeast quarter of
Section 4 and his son acquired the southwest quarter of that section.
For an unspecified number of years they apparently accepted the
existing visible boundaries between their lands and the land of
Labore, but toward the end of this period, for unknown reasons, they
evidently became increasingly curious or suspicious about the location
of the quarter section lines.
1921 - Forbes and his son confronted Labore with their concerns
about the quarter section lines. Forbes believed that the south end of
the rock line was too far east and intruded into the northeast quarter,
and Labore agreed that the line of rocks appeared to run in a
somewhat northwesterly and southeasterly direction, rather than
running due north and south. Forbes proposed to Labore that they
should either obtain a survey or make some measurements of their
own, to try to determine where the quarter section lines were really
located, and Labore agreed, but no such action was taken by either
party at this time.
1925 - Forbes ordered a survey to locate the quarter section lines.
Who performed the survey, in what manner it was conducted, and
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whether or not any existing monuments, original or otherwise, were
found or used in making the survey, are all unknown, but according to
this survey, the quarter section line between the northeast and
northwest quarters was 110 feet west of the fence and the rock line at
the north end of the section, and 233 feet west of the rock line at the
south end of the north half of the section. Since the land owned by
both Labore and Forbes was presumably described in the typical
aliquot fashion in their deeds, Forbes believed that the surveyed
quarter section line represented the true location of his west boundary,
so he took down the fence that had been built by Jackson and built a
fence on the surveyed line. Labore responded by filing an action
against Forbes, seeking judicial confirmation that Labore owned all of
the land in the north half of the section lying west of the line of rocks,
by means of adverse possession.
Labore did not contest the validity of the 1925 survey, instead he
argued that a visible line of occupation, represented by the rocks, had been
in place for well over 20 years, and that line had always been accepted and
treated by all of the previous owners of the land in the north half of Section
4 as their mutual boundary, so he had acquired title up to that line by virtue
of adverse possession, making the record location of the quarter section line
in question, as that line that had been defined by the survey, irrelevant.
Forbes argued that Labore could not successfully maintain that he had
acquired any portion of the northeast quarter through adverse possession for
3 reasons, because the location of the line of rocks represented a mistake,
because Labore had not personally held possession of all of his land for a
full 20 years, and because Labore had freely and openly admitted that he
owned nothing more than the northwest quarter, so the survey controlled,
and Forbes still owned the entire northeast quarter up to the surveyed line.
The trial court agreed with Forbes that the possession of Labore had
amounted to only a correctable mistake, and that Labore's own statements
indicated that he never had any adverse intent, denying that there was any
validity in the adverse possession claim set forth by Labore, and finding that
the surveyed line controlled the location of the boundary in question.
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In resolving this controversy, the Court relied heavily upon the same
basic principles that it had applied in deciding the Sullivan case in 1919,
previously reviewed herein, so the relevance of that case to this one, and the
principal difference in the two scenarios, are both noteworthy. As will be
recalled, the Sullivan case, like this one, involved the cultivation of land
which was found, by means of a survey, to extend beyond a PLSS boundary,
and just as here, no title conflict existed, presenting a pure boundary location
issue. In addition, in that case, just as here, there were no competing surveys
presented by the litigants, there was only one retracement survey, since no
survey had been done on behalf of the opposing side, so in both of these
instances, no argument could successfully be made by the adverse claimant
that the original PLSS line in question was in any location other than that
indicated by the survey, therefore the boundary location issue had been
effectively forsaken, through a failure to present any contrary boundary
evidence. As was noted in discussing the Sullivan case, the Court there
chose to apply the progressive view of adverse possession, first adopted in
the Ingalls case of 1916, enabling Groves to defeat the challenge presented
by Sullivan through the use of adverse possession, because just as in the
Ingalls case, the Court was justifiably suspicious of the validity of the
resurvey relied upon by Sullivan, and therefore saw fit to allow adverse
possession to function as a judicial tool with which to preserve the
obliterated PLSS boundary, which Groves had relied upon, but could not
otherwise defend. Having definitively established a strong and critically
important precedent in those two prior cases, by allowing adverse possession
to operate as a surrogate for missing boundary evidence, and to counteract
and overcome the legal effect of an uncontested recent survey, the Court
naturally recognized this dispute as another opportunity to apply adverse
possession in the PLSS boundary context, in the absence of any direct or
reliable original survey evidence. The Court had displayed a great propensity
for defending both original monuments and reliance upon them by land
owners, in a number of the earlier boundary cases that we have reviewed,
but in these subsequent cases the Court had demonstrated that it was also
prepared to uphold visible physical boundaries in those instances in which
the litigant who was in the position to do so failed to present any evidence
directly connecting the established physical boundary location to the original
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boundary location, by exercising adverse possession as a means of boundary
resolution. The key difference presented by the conflict brought before the
Court by Labore was that it involved a quarter section line, as opposed to a
section line in the Sullivan and Ingalls cases, so the Court now found itself
adapting adverse possession one step further into the realm of boundary law,
since the PLSS line in dispute here had never even been run on the ground
by the GLO, and there was no basis upon which to portray or defend the
rock line as a perpetuation of an authentic original PLSS line. Nonetheless,
the Court did not withdraw in the least from it's consistent judicial course,
devoted to protecting long established boundaries by any means available,
regardless of how such boundaries may have been established, thus quoting
from the testimony of each of the litigants, the Court indicated that:
“defendant testified ... I told him that the line wasn't right and I
wanted to have it surveyed or measured up, and I told him there
we could do it ourselves ... He said ... he didn't want any of my
land - he didn't want a foot of it ... Plaintiff testified ... I
probably did tell Mr. Forbes I didn't want any of his land ...
What I wanted was the true line and I supposed I had it when I
bought the land ... (The Court resuming) It is not necessary that
the property should have been in the possession of the same
person ... possession of successive occupants may be tacked
together if there is privity between them. Privity exists between
two occupants when possession is acquired by voluntary
transfer of title or possession. There was privity as to Lot 3
from the time of the possession by Jackson ... The plaintiff and
his predecessors in interest entered into possession ... under a
mistaken belief as to the true boundary ... there is adverse
possession ... notwithstanding the land extends beyond the calls
of the occupant's deed ... adverse possession is established,
unless by affirmative proof or admission it is shown that for a
part of the time at least possession was not adverse and was
subordinate to the true owner ... plaintiff admitted that the fence
was not on the true line and that he agreed to have a survey
made to establish the true boundary ... Physical exclusion of all
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others under a claim of right ... is the sole test of adverse
possession."
Thus the Court most adroitly swept aside all 3 of the potential
obstacles to adverse possession in the PLSS boundary context that had been
set up by Forbes, sending a clear message that historically honored
boundaries would be diligently respected by the Court, thereby paving the
way for adverse possession to exert a level of control over the resolution of
boundary locations comparable to that which it has always had over the
resolution of genuine title conflicts. The Court fully realized of course that
every uncontested survey typically bears the presumption of correctness, but
having been frequently disappointed by the improper methodology that had
been so prevalent in the early resurveys that had come to it's attention,
particularly the high disregard for physical evidence of established
boundaries that was manifested in those resurveys, the Court was
understandably still very reluctant at this time to allow that legal
presumption to become a decisive factor in boundary determination. The
survey that was done for Forbes may in fact have been properly executed in
all respects, but it bore the weight of the legacy of the many independent and
unauthorized resurveys that the Court had been compelled, as we have
observed, to deal quite sternly with in past cases, so the Court was
disinclined to allow it to stand as controlling boundary evidence, against a
long honored and physically well marked line, particularly in the absence of
a clear connection between the resurvey that was in play here and any
original survey evidence. With respect to the issue presented by the words
spoken by Labore in conversing with Forbes about their mutual boundary,
the Court held that statements made by an adverse claimant do not overcome
or negate the controlling value of his physical acts, unless his words are
deliberately deceptive or intentionally fraudulent, which would serve to raise
an estoppel against him, pursuant to the fundamental principle that actions
speak louder than words. On the crucial matter of privity, the Court strongly
upheld the concept of tacking, noting that privity exists between every
typical grantor and his grantee, because privity of title is not limited to
descriptive words appearing in deeds or other documents, it can equally well
be based upon the physical limits of occupation or use that visibly mark the
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area actually transferred or physically delivered by a grantor to his grantee.
Moreover, in the view taken here by the Court, the rule that one cannot sell
what one does not own has no application, because where the grantor intends
to convey all of his land rights, and the adjoiner, whose land has been
occupied in part by the grantor, is on notice of the ongoing use of a portion
of his land, a transfer to an innocent grantee is legitimate and binding upon
all parties, whether the delinquent adjoiner later decides to apprise himself
of the true boundary location or not. In conclusion, the Court here again
reiterated that the presence of a mistake cannot prevent adverse possession,
since every boundary dispute involves a mistaken notion of some kind, and
if no mistake had been made by either of the current land owners, or any of
their predecessors, regarding the true line location, then there would be no
disagreement and no boundary issue would ever have arisen. Therefore,
declaring that adverse possession is purely a function of which party held
actual dominion over the land, in accord with the trend established by it's
previous decisions on that topic, the Court reversed the ruling of the lower
court, finding the rock line to be the boundary between the properties of the
litigants, sufficient in strength to carry the title of Labore, limited though his
title was to the northwest quarter, well beyond the surveyed quarter line,
back to it's time honored resting place, amidst the rock pile.
BENSON v BENSON (1934)
Here we again look beyond those cases involving boundary and
survey issues, to enhance our understanding of how the Court perceives the
value and significance of deeds as evidence of land rights, and how it deals
with the wide range of disputes and conflicts that invariably arise over
documents conveying real property and related rights, since land surveyors
are routinely required to analyze, interpret or create some of the vital
components of such documents. The basic thrust of the case that we are
about to review is to demonstrate that the actual content of a document can
be rendered inconsequential, if it can be shown by means of extrinsic
339
evidence that the document itself is invalid for some reason that may be not
be readily apparent, and can therefore hold no controlling value, which
brings the consideration of factors such as deed delivery and recordation into
focus, making a few earlier cases pertaining to those topics worthy of note.
In 1904, in Lund v Thackery, Thackery signed a blank deed, to facilitate the
conveyance of a certain quarter section that he owned, and sent it to his land
agent, with instructions that the agent should proceed with the intended
conveyance to Lund only under certain specified conditions. The agent sent
the deed on to a bank however, which either ignored or was unaware of the
terms that had been specified by Thackery, and completed the deed, and
gave it to Lund. Since his specified conditions had never been met, Thackery
proceeded to deed the same quarter to another party, whereupon Lund filed
an action seeking to clear his title, by having Thackery's subsequent deed
voided. The Court reversed a lower court ruling in Lund's favor however,
and voided Lund's deed instead, on the basis that it had never been legally
delivered to him, holding that Thackery's agent had acted improperly, since
an agent has no authority to deliver a deed on behalf of a grantor who
provided the deed to the agent only conditionally, therefore Thackery was
not bound by his agent's unauthorized decision to prematurely proceed with
the proposed transaction. In Hingtgen v Thackery, in 1909, the same
controversy was again in play, because Lund had deeded his alleged interest
in the quarter to Hingtgen, who then claimed that he was an innocent grantee
of Lund, and for that reason he could not be required to honor the
subsequent deed that had been issued by Thackery. The Court again ruled
however, that Thackery had retained ownership of the quarter, finding that
Hingtgen's deed was just as invalid as Lund's deed, and denying Hingtgen
the status of an innocent grantee, by charging him with notice of the fact that
Lund's deed was void, through the application of the equitable principle that
"the law will not permit a man to shut his eyes, when his ignorance is to
benefit himself", thereby illustrating that even a clearly senior deed cannot
always be relied upon. In the 1905 case of Moran v Thomas, Moran attacked
the validity of a tax deed held by Thomas, on the basis that it contained
inadequate PLSS abbreviations, of the kind that had been repeatedly rejected
by the Court in other cases, as we have previously noted. Thomas conceded
the invalidity of the description at issue, yet argued that his deed should be
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treated as valid and controlling, because it had been recorded, leading the
Court to remind Thomas that recordation does not operate to validate
otherwise illegitimate documents, so an insufficient description such as the
one in his deed acquires no legitimacy or controlling force through mere
recordation.
Prior to 1930 - Anna Benson was a wife and mother with three adult
sons, Chris, Emil and Sverdrup, and one adult daughter, Matilda.
Anna was an elderly immigrant from an unidentified country, who
could read, write and speak only very little English, but her children
were evidently all fully competent in the use of the English language.
Where Anna lived, and whether or not any of her children lived with
her, are both unknown, but when her husband died, at an unspecified
date, his ownership rights in two quarter sections passed to her. Anna
thus held a two thirds interest in an unspecified quarter section in
Minnehaha County, and a one third interest in an unspecified quarter
section in Moody County, but whether or not anyone was living on
either of these properties, and what actual use was being made of
them, if any, is unknown.
1930 - Anna reached the age of 89 at this time, and some of her
children apparently became concerned about the fate of her land
ownership interests, so they evidently developed a plan of some kind
to obtain her land interests prior to her death. There is no indication
that any of the actions of any of the Benson children with respect to
their mother were nefarious or evil in any way, or that any of them
had any intention of defrauding her or otherwise taking any unfair
advantage of her, presumably their intentions were all upright and
amounted only to the typical preparations for the passage of land
rights from one generation to the next. Nothing is known about Anna's
specific relations with each of her children, presumably they were all
equal in her eyes, and there is no indication that any of them held a
position of higher or lower favor with her than the others. In August
of this year, while Chris and Emil were apparently out of the state,
Matilda and Sverdrup presented Anna with two warranty deeds,
conveying her lands, presumably to them, and she agreed to sign the
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deeds, and she did so. Although there is no indication that Anna was
placed under any duress or pressure to sign the deeds, nor is there any
indication that she did not understand what she was doing, she did
express some concern about the fact that Chris and Emil were not
present, so she told Matilda and Sverdrup to hold onto the signed
deeds and to do nothing with them until their brothers returned, so
Anna could have a chance to consult them, regarding the proposed
transaction. Matilda and Sverdrup then took the deeds back to the
third party scrivener who had prepared them, presumably an attorney,
with instructions for him to hold onto the deeds indefinitely, as their
mother had requested. In September however, for unknown reasons,
the composer of the deeds had them recorded, but there is no
indication that any further action was taken, nor that the occupation or
use of any of the land at issue changed hands. When Chris and Emil
eventually returned and spoke with their mother about what had been
done, Chris agreed that the transaction was acceptable to him, but
Emil did not, so Anna decided to nix the deal, and she evidently
informed her children that she wanted the deeds to be either returned
to her or destroyed. When she was told that the deeds had been
recorded, and it was too late to undo the conveyance, she filed an
action against Chris, Matilda and Sverdrup, seeking to have the
recorded deeds declared to be legally void.
Anna did not assert that she had been forced, coerced or tricked into
signing the deeds in question, instead she argued that she had signed them
only on a tentative basis, without intending her signature upon them to
operate as a final or conclusive act, and she had communicated that to
Matilda and Sverdrup at that time, so her signature was not emblematic of
any absolute intention on her part to convey the land at issue, since she had
reserved the right to nullify the deeds, therefore her subsequent decision to
do so should be honored and given legal effect. Chris, Matilda and Sverdrup
argued that the deeds had been properly executed in all respects, and their
mother was merely attempting to withdraw them based upon a plain change
of heart, so the deeds were legally binding upon their mother, and she had no
legitimate basis upon which to reverse her decision to convey her land to
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them. The trial court was naturally sympathetic to Anna's plight and held
that she had the right to demand that the deeds be cancelled and set aside.
While its definitely possible that there may have been some nefarious
element, or some unseen motives, involved in the transaction that was
proposed by Matilda and Sverdrup, that is not necessarily the case, and if the
Court observed anything suggesting the presence of fraud of any variety, it
made no allusion to anything of the sort in resolving this controversy, nor
did the Court address this matter as a family dispute, it followed the same
basic principles that would have been applicable had the litigants been
strangers. Although children certainly can, and often do, take unfair
advantage of their aged parents, the Court gave no indication that it saw
Anna as weak or defenseless, and in fact its quite possible that she had used
her land holdings as a tool of manipulation to control her children, but no
such schemes or treachery were evident to the Court, so the matter stood as a
typical land rights conflict, to be objectively adjudicated, just as would any
other honest disagreement over the true intent of the parties to an alleged
conveyance. The fact that Anna did not fully understand or comprehend the
English language was the most important external factor inherent in this
situation, the Court noted, since that unfamiliarity on her part could easily
have resulted in a failure to recognize the potential significance of her
signature on the documents in question, depending upon what she was told,
or not told, about the content of those documents and their purported legal
effect. Just as in virtually every dispute over the true meaning and effect of a
conveyance, the Court determined, the principal controlling element must be
the intent of the grantor, provided that it was satisfactorily expressed in a
manner that is clearly and fully understandable to the grantee, thereby
fulfilling that basic obligation of the grantor, and making the intent truly
mutual. In this instance however, the deeds had not been prepared either by
the grantor, or under the direction of the grantor, as is typically the case, just
the contrary, they had been prepared under the direction of the grantees,
employing a language that the grantor could not critically review in detail,
which had the effect of shifting the crucial burden of proof, in the eyes of the
Court, away from Anna and toward her grantees. Nevertheless, the actual
content of the deeds was not the focal point of this controversy, the Court
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realized, this conflict was centered upon the intent with which the
documents were signed, so the linguistic details of the deeds were only
marginally relevant, the decisive factor would be the intent regarding the
purpose of the deeds, and given the presence of the grantor, her testimony
was available to supply the strongest evidence of her intent, as to the manner
in which she wanted and expected the deeds to be used, at the moment she
handed them over to her children. As we have learned from numerous prior
cases, the Court normally very diligently protects grantees and enforces all
agreements, but this scenario forms an interesting counterpoint with those
more typical cases, showing that no such rules are truly without exception,
because here the Court recognized that the deeds at issue had been placed
before the grantor with an expectation of action on her part, putting her in
the position typically occupied by a grantee, making her testimony
concerning her intent especially relevant:
"It is respondent's contention that there was no complete
delivery ... It is essential to the validity of a deed that there be a
delivery ... it was agreed at the time the deeds were left with the
scrivener that they should be retained by him ... it was agreed in
the scrivener's office that the deeds should remain there ... the
deeds were recorded ... respondent disapproved the transaction
... to constitute a delivery it is necessary that the grantor part
with the legal possession of the deed and all right to retain or
control it ... there was no valid delivery of the deeds."
The position taken here by the Court clearly demonstrates that the
circumstances surrounding the delivery of a deed represent the most vital
evidence bearing upon it's validity, and it also highlights the importance of
recognizing the true nature and value of recordation, which neither sanctifies
a purported conveyance nor adds validity to a deed, and can by no means fill
the void left by an illegitimate or ineffective delivery. Recordation can
neither create nor augment land rights of any kind, because rights are created
only through the actions of the parties themselves, and recordation serves
only as a vehicle with which one can provide notice to others, so although
recordation can certainly serve to protect existing rights, it can never be used
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as a device through which to elevate false or flawed claims to the status of
valid land rights. The essence of a contract does not reside in the documents
that are created to portray it, the essence of the matter lies in the actual
agreement between the parties, which motivated the creation of the contract,
and so it is with all deeds, the mere document itself can be allowed to wield
no power that it was not intended to have. Its important to keep in mind that
such documents are called "deeds" expressly because they memorialize
actual events, the event that takes place at the moment of transfer from
grantor to grantee is the only truly vital "deed" that ever occurs, so the
recorded document can have no legal force or effect, beyond providing color
of title, if the event that the recorded document points to was in some
manner false or incomplete. The dispositive evidence, the Court decided,
was Anna's testimony as to her intent at the moment of the alleged deed
delivery, when she signed the deeds and handed them to the grantees, and
her subsequent actions had illustrated that in her mind there was never any
irrevocable delivery of the deeds, she had intended to retain control over
them, trusting that they were only being taken from her for purposes of safe
keeping, and that no unintended or premature use would be made of them.
Had Anna been a fluent speaker and reader of the English language, or if she
had been the author of the deeds in question, or if she had recorded the deeds
herself, the outcome could very well have been just the opposite, because
her burden of proof would have been altered or elevated by such factors
bearing upon her intent, and the presumption of innocence may not have
operated to her benefit, but under the conditions present here, the Court
found her testimony quite convincing, so in the absence of any evidence of
bad faith on her part, the Court fully upheld the lower court ruling in her
favor. The outcome of this case, much like the Labore case just previously
reviewed, in the context of the legitimacy of described boundaries, again
reminds us that deeds cannot always safely be taken at face value, because
many factors that may not be apparent to a stranger, such a surveyor, can
have a powerful influence or effect on the controlling value, or even the
validity, of such documents. For professionals dealing with land rights on a
regular basis, its also essential to appreciate the importance of the fact that
grantors have the right to retain full control over all aspects of any
transactions involving their land, and in fact they are always presumed to do
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so, therefore third parties such as surveyors, when preparing documents such
as deeds and plats, should be cognizant, unlike the scrivener here, that they
have no independent authority to perform any acts involving the grantor's
rights that have not been authorized by the grantor. In addition, it should
always be kept in mind that documents of conveyance do not represent
ownership itself, they represent only one form of evidence of ownership,
which is always subject to all the failings and frailties of the people who
create such documents, so their purported contents can often be overcome,
either by superior evidence or by operation of law.
WALKER v SORENSON (1936)
The relentless and often dramatic movement of the Missouri River
during the territorial period and the early years of statehood forms the
backdrop for our next case, which took place in the portion of Clay County
that became part of South Dakota by virtue of a 1905 boundary compact
with Nebraska, the further ramifications of which we will encounter in
reviewing a forthcoming case. The details pertaining to the movement of the
river in the case we are about to review are outlined by the Court in it's
review of the evidence only in the Court's typically minimal fashion, yet a
reasonably clear picture of the relevant action of the water emerges from the
information provided, indicating that both accretion and avulsion were
present in the subject area, as the river exhibited it's habitual pattern of
periodically moving back and forth over the same wide swath of bottom
land. In this instance however, the details of the river's movements do not
become the primary focal point of the Court's efforts to adjudicate the
boundary and title issues that are presented here, because such factors can
only control when they are not precluded from controlling by operation of
law. As will also be noted in reviewing the timeline of this case, many
different parties were successively engaged in activities involving the
subject property, throughout the period when the river was perpetually
redefining it's course, and some of those parties, including the defendant,
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persisted in their efforts to make beneficial use of as much of the land at
issue as the great river would allow at any given time. Given this
consistently productive use of the otherwise marginally valuable bottom
land, by one particular settler and his chain of successors, it should come as
no surprise that the Court views their utilization of the land with favor,
approving the use of adverse possession to assist in the protection of their
land rights, thereby precluding any need to embark upon a detailed technical
analysis of the impact of the river's activity upon any of the boundaries and
the titles that are in play. The most vital specific issue in contention in this
case, and the proposition for which it has been subsequently cited, is one of
the same issues addressed by the Court in the Labore case, just 5 years
earlier, and that is the often controversial and little understood concept of
privity between successive occupants of any given tract of land. Here the
Court follows and expands upon it's liberal interpretation of the role of
privity, initially set forth in resolving the Labore case, in support of adverse
possession, by emphasizing that it is not privity of title which is relevant to
adverse possession, it is privity of possession itself. On this occasion the
Court also definitively points to the importance of comprehending that it is
the physical absence or inaction of a record owner or title holder,
functioning in combination with the acts of the adverse parties upon the land
in dispute, which forms the conclusive bar that the Court envisions when
invoking adverse possession. In addition, the Court's position in support of
physical privity, as being the primary determinative factor in conclusively
linking successive periods of land use, provides a foundation for the modern
extention of adverse possession into the realm of boundary law, by removing
privity of title as an obstacle to utilizing adverse possession as a means of
boundary determination. Under the original doctrine of adverse possession,
that prevailed in earlier centuries, the concept of privity of title operated to
prevent the application of adverse possession to portions of adjoining
properties that were undescribed in the deeds of grantees of adverse
claimants, thereby restricting their adverse possession claims to the
ownership of entire properties, rather than fragments of adjoining tracts, but
the Court's position on privity is in alignment with the modern judicial
abandonment of that historic limitation.
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Prior to 1894 - A township lying along the south boundary of the
Dakota Territory was surveyed and platted by the GLO, and at this
time the Missouri River ran in a generally easterly direction through
the northerly portion of Section 14. At an unspecified time toward the
end of this period, the course of a substantial portion of the river
shifted dramatically to the south, apparently as the result of a specific
avulsive event, after which the river flowed through the central
portion of Section 23. What use was being made at this time of the
land in these sections, if any, is unknown.
1894 - Shortly after this change in the location of the river, the west
half of the southeast quarter of Section 14, which had formerly been
on the Nebraska side of the river, but was now on the South Dakota
side, was acquired by Egan. Soon after acquiring his land, Egan
fenced it, and he elected to take advantage of the movement of the
river, by extending his fences southward, along both the east and west
sides of his property, all the way to the river in Section 23. How Egan
determined where his east and west boundaries were located is
unknown, since there is no indication that monuments of any kind
were ever found, or that any surveys were ever done in the area,
subsequent to the original GLO survey work, but this proved to be
irrelevant, because the location of these fences erected by Egan was
never challenged.
1902 - Austin was an elderly widow, whose husband had left his
extensive land holdings to her, apparently stretching through many
sections, which included a great deal of land that was situated along or
near the river in this township, presumably lying on both sides of the
river. There is no indication that Austin's late husband had ever made
any particular use of any of his land in this area, which was apparently
vacant and was used only as open range, if it was used at all. Austin
evidently did not reside in this area, she never made any use of the
land, and she may have never even visited the area. At this time
however, for unknown reasons, the northwest quarter of the northeast
quarter of Section 23 was added to the land holdings of Austin on the
tax rolls, although it had never been deeded to either her or her
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husband. Who had owned this quarter previously is unknown, but it
was apparently no longer part of the public domain by this time.
Austin was apparently either unaware of this development or
unconcerned about it, so she just went on paying the taxes on all of
her land, including this additional area, without ever inquiring about
why it had been added to her tax bill.
1904 - Austin died, but her estate continued paying the taxes on all of
the land that had been assessed under her name.
1905 - Egan sold the west half of the southeast quarter of Section 14
to Powell. When conveying his land to Powell, Egan showed Powell
the entire fenced area running all the way down to the river, so both
men fully understood that Egan was retaining nothing, and it was
Egan's intention to convey all of the land that he had been using to
Powell. Powell either did not realize that part of the fenced area was
outside the original boundaries of Section 14 and extended well into
Section 23, or he did not care, so he went into possession of the entire
ranch and continued to make use of the entire fenced area, just as
Egan had.
1911 - Whittemore, who had inherited the estate of Austin, deeded the
northwest quarter of the northeast quarter of Section 23 to Walker.
Whether or not Walker acquired or owned any other land in the area is
unknown, but he evidently never made any attempt to use the land
that he acquired at this time, and there is no indication that Powell was
ever aware that Walker had acquired a portion of the fenced area,
which Powell thought was part of the Egan ranch. Walker began
paying the taxes on this portion of Section 23, just as Whittemore had
during the period when it had been in her name, as the successor of
Austin.
1912 - Powell conveyed the Egan ranch to Sorenson, presumably once
again describing it only as the west half of the southeast quarter of
Section 14, but just as in the transaction between Egan and Powell,
both the grantor and the grantee understood or presumed that the
entire fenced area was being conveyed, and Sorenson continued to use
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all of the land just as each of his predecessors had, apparently
unaware of the existence of any boundary or title issues related to it.
Either shortly before or shortly after Sorenson made this acquisition,
the river began to erode away it's north bank and migrate back to the
north, reducing the size of the ranch that Sorenson had acquired.
1914 - By this time, the river had evidently eroded away all of the
portion of Section 23 that had been fenced by Egan, because the
northwest quarter of the northeast quarter of Section 23 was removed
from the tax rolls at this time, so Walker ceased to pay any taxes upon
it, evidently recognizing that it had become completely submerged
under the river.
1915 to 1918 - The north bank of the river continued to recede
northward into the southerly portion of Section 14 during this time,
until reaching the maximum extent of it's lateral motion by the end of
this period, and it then remained in this channel for an unspecified
number of years, leaving Sorenson with a ranch that was presumably
only about half the size that it had been when he acquired it. Evidently
Sorenson's buildings were all situated in the northerly portion of the
ranch however, since there is no indication that he ever moved any
buildings or that he lost any of them to the river.
1919 to 1935 - The river migrated gradually back to the south during
this time, so by the end of this period it was once again occupying it's
southerly channel, and it was therefore more or less in the same
location where it had been from 1894 to 1912, enabling Sorenson to
once again make use of the full area that Egan had fenced in 1894, as
cropland or pasture, although whether or not Sorenson ever rebuilt the
washed out portions of the Egan fence is unknown. Around the end of
this period, Walker evidently visited the area and noticed that all of
the land he had purchased over 20 years before had once again been
exposed by the river and become useful land, so he filed an action
against Sorenson, seeking to quiet his title to the northwest quarter of
the northeast quarter of Section 23, since that would enable him to
either force Sorenson off the land at issue, or require Sorenson to pay
Walker, if Sorenson wanted to continue using the portion of Section
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23 that had been deeded to Walker in 1911.
Walker argued that he was still the owner of record of the northwest
quarter of the northeast quarter of Section 23, by virtue of his deed from
Whittemore, although he had never taken possession of any of it, and he had
never attempted to make any actual use of it, so Sorenson should be
compelled to vacate that area and relinquish his possession of it unto
Walker. Walker further argued that Sorenson could not successfully rely
upon adverse possession to defend his use of the quarter in question, because
Sorenson had not possessed Walker's quarter for a full 20 years, either
before or after it was submerged by the river. Walker acknowledged that the
entire northwest quarter of the northeast quarter of Section 23 had been
submerged for an unknown length of time, but he maintained that it had
returned to his ownership upon re-emerging from beneath the water, so his
deed to it had remained perfectly valid, despite all of the river's activity.
Sorenson argued that he had acquired the Walker quarter by adverse
possession, because the combined use that had been made of it by Egan,
Powell and himself successively was all genuinely adverse, and their
consecutive possessions tacked together were sufficient to bar any other
claim of ownership relating to the quarter in controversy, such as that being
made by Walker. The trial court ruled that adverse possession had taken
place and quieted title to the disputed quarter in Sorenson on that basis,
rejecting all of Walker's assertions to the contrary and finding Walker's deed
to be worthless.
At the outset it should be clarified that there was no contention over
whether the land at issue here was in South Dakota or Nebraska, because
after the river had jumped to it's southerly channel the two states had
reached an agreement relinquishing any claims that either state may have
had to any land on the opposite side of the river, so it was undisputed that all
of the land in question was in South Dakota, and Nebraska had no claim to
any of it based on the movement of the river having been avulsive in nature.
The scenario presented by this case brought a rather unique mixture of legal
and equitable elements before the Court, and two key concepts that had been
adopted as important principles by the Court in previous cases would control
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it's outcome, one being from the realm of riparian law, and the other
concerning the application of adverse possession. The Court had set forth it's
perspective in regard to the key issue of privity in the 1931 Labore case,
previously reviewed herein, in the context of adverse possession, taking the
position that an absence of privity of title represents no obstacle to the
progress of adverse possession in the presence of privity of possession,
which had enabled Labore to successfully tack the possession of his grantor
to his own directly subsequent possession, in order to complete the
statutorily required 20 year period. In the Allard case of 1918, which we
have also reviewed, the Court had chosen to approve the doctrine of reemergence, which stipulates that submerged land is not forever lost to the
party who stands as the owner of record of the property at the time it
becomes entirely submerged beneath a navigable river, concluding that the
adjoining upland owner, whose land is thus entered by a migrating river such
as the Missouri, is not a true riparian owner, so that party can never acquire
any accretion extending beyond their existing PLSS boundaries. These two
crucial precedents established by the Court were obviously both relevant and
in play here again, and each of them held the potential to shape the result of
this litigation. Walker must have been aware of the Court's acceptance of the
principle of re-emergence, or he could never have dared to assert ownership
of the quarter that he had acquired in 1911, given his knowledge that it had
subsequently been fully immersed in the river for at least 3 to 4 years, and
it's not surprising that he found reason to be optimistic about his chances of
prevailing in this situation, if he could persuade the Court that the doctrine
of re-emergence was applicable to his property. Before the Court could
reach the riparian issue however, and potentially apply the rule pertaining to
riparian boundary disputes that it had put in place 18 years earlier, in
Walker's favor, the matter of adverse possession had to be dealt with, and
Walker's case was destined not to survive that hurdle. Just as the Court had
viewed Labore's acquisition of land based on a typical aliquot PLSS
description, along with his observation of a line physically marked on the
ground, as entirely innocent and legitimate, here the Court saw the
acquisitions of the Egan ranch, as fenced by Egan and bounded by the river
on the south, by first Powell and then Sorenson, as equally supportable,
leading the Court to expound upon the effect of privity of possession in
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relation to the intent of both of those conveyances:
“the decisive question in determining whether the bar is
complete as against a claimant out of possession is whether he,
his ancestor, predecessor, or grantor, has been in possession
within 20 years prior to commencing his action ... courts are
frequently met with the fact that a number of persons have been
in adverse possession successively ... When no privity exists ...
the law presumes that the true owner is in possession. When,
however, there is privity of possession between the occupants ...
adverse possession is made out against the claimant out of
possession ... The entire scope of this is ... not to determine
whether the occupant has been in possession for any fixed
period of time, but is to determine whether the claimant out of
possession has in fact, or in law, been in possession within the
statutory period ... When, however, there is privity of
possession ... for the statutory period, the bar is complete ... the
facts are sufficient to show a privity between the Egans and
Powell, and Powell and Sorenson ... the facts ... establish the
required privity ... possession ... may commence in parol
without deed or writing, and may be transferred and pass from
one occupant to another by parol ... no written transfer was
necessary to constitute the privity required ... verbal transfer of
the actual possession, accompanied by the delivery, met all the
requirements."
Fully cognizant that both Powell and Sorenson, when each of them
had successively played the role of a grantee, had presumably acted
innocently and believed that they were acquiring all of the land that Egan
had fenced, extending south all the way to the bank of the river, as it was
located at such times, the Court found that their acquisitions included the
entire fenced area, for purposes of the dominion and control over land that
represents genuine adverse possession. It may well be pointed out that there
was no indication that the original GLO line between Sections 14 and 23
was impossible for a surveyor to locate, so first Powell and then Sorenson
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failed to obtain a survey, which would have shown them the location of their
south boundary of record, therefore they should not be treated as innocent
grantees, but the Court has never adopted the position that a grantee has any
absolute obligation to order or demand a survey, and quite to the contrary,
the Court has frequently upheld the right of a grantee to rely upon his
grantor. In reality, the origin of Walker's title, being founded as it was upon
a mistake that had been made in revising the tax rolls, was so weak that the
Court might very well have declined to quiet his title as he had requested
even in the absence of adverse possession, but the Court took this
opportunity to drive home the point that privity of possession is all that is
required to support adverse possession, because the Court realized that there
can be no privity of title between and adverse occupant and his grantor. In
the view of the Court, the concept of privity operates to confirm that the
owner of record, such as Walker in this case, was never even in constructive
possession of the land at issue, it does not serve as proof of the possession of
the grantees, nor does it need to prove anything of the sort, because it is the
absence of possession by the record owner that the relevant statute of
limitation implicates. Wisely rejecting the arcane and perverse notion that
land momentarily returns to the possession of the owner of record when it is
conveyed from one adverse claimant to another, thereby resetting the clock
for adverse possession, the Court fully upheld the decision of the lower court
awarding the quarter in dispute to Sorenson, indicating that it makes no
difference how many adverse possessors held the land in sequence, if the
record owner was perpetually excluded from it, the law bars him from
successfully claiming it. In so ruling, the Court clarified that the time aspect
of adverse possession is focused solely upon the owner of record, and does
not relate to the adverse occupant in any personal manner, while just the
opposite is true for actions and intent, since the actions and intent of the
record owner are immaterial, unless he effectively ousts the occupant,
resulting in an actual cessation of the adverse use, it is the actions and intent
of the occupant or occupants alone, that defines whether possession can be
properly characterized as adverse. Since ownership through adverse
possession had been proven, from 1894 to 1914, Sorenson had acquired title
to the Walker quarter at that time, prior to it's submergence, so by the time
the re-emergence doctrine took effect years later, Walker's rights to his
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quarter had been fully extinguished, therefore it re-emerged as Sorenson's,
rather than Walker's, but if 20 years had not passed prior to the submergence
of the entire quarter, Walker could potentially have prevailed on the issue of
re-emergence. The section line was no obstacle to the re-emergence of the
land at issue to the benefit of Sorenson, because the Court had not held in
the Allard case that accretion can never extend across any PLSS line, it had
held only that accretion cannot cross a PLSS line that represents an existing
boundary of ownership at the time the line in question becomes submerged,
so although Walker was right about the applicability of the re-emergence
doctrine in this instance, he wound up with nothing, because adverse
possession had already extended Sorenson's ownership rights into Section 23
before re-emergence occurred.
HILLEBRAND v KNAPP (1937)
Resuming our review of the Court's perspective on riparian rights, and
the boundary issues associated with such rights, here we watch as the Court
declares a lake that actually contains no water whatsoever to be navigable
for purposes of title, reflecting a dramatic shift in the Court's position on
such matters involving public rights, when contrasted with the nineteenth
century Olson case, previously reviewed herein, which also featured a lake
that had basically disappeared. A great irony that attends the scenario
presented here stems from the fact that the defendant's claim requires him to
insist that the lake remains viable as a body of water, although the specific
benefit that he personally derives from it, and which he successfully defends,
can be obtained only when the lakebed is dry. While there are clearly valid
grounds upon which to challenge the outcome of this case, the wisdom of
the Court's decision would seem to have been verified, to some extent at
least over the long term, by the fact that the lake did survive and return to
existence, yet whether or not classifying it as navigable, even when filled to
it's historically normal level, is truly justifiable, represents a more complex
question. Also in 1937, just a few months prior to deciding the case that we
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are about to review, and also pertaining to riparian rights, the Court had
formally announced that "riparian rights are property", in Parsons v City of
Sioux Falls, which was a water pollution case, making any demonstrable
taking of riparian rights from a private party for any public purpose
essentially equivalent to a taking of private land, requiring proper
compensation to the riparian property owner. It was not until nearly half a
century later however, in South Dakota Wildlife Federation (SDWF) v
Water Management Board (WMB) in 1986, that the Court was called upon
to adjudicate the specific location of a riparian boundary that was governed
by statutes which had codified the early rulings of the Court on riparian
boundary determination, such as those handed down by the Court in the
Flisrand and Anderson cases, previously reviewed herein. The subject of that
case was Waubay Lake, and extensive evidence, including the conflicting
testimony of numerous experts, made the outcome highly contentious. In a 3
to 2 split decision, the Court held that the legally controlling ordinary high
water mark (OHWM) had been properly established by WMB, about 12 feet
below the elevation asserted by SDWF, as the majority took the position that
the lake level known to have existed at the time of statehood, set forth by
SDWF, had been rendered inapplicable, by the installation of 2 permanent
drainage structures that prevented the water from ever again reaching it's
historically normal level. Then in 1991, In the Matter of Beaver Lake, the
Court was confronted with a situation in which a slough, covering about 40
acres, had been split off from the lake at issue by a roadway since 1934,
although it remained aquatically connected to the lake by culverts, and the
question was whether the slough was privately owned, or was part of the
lake itself, which was acknowledged as being public. After clarifying that
physical conditions created by human actions can alter the location of the
OHWM only once such human alterations to the landscape have existed long
enough to become "the equivalent of natural conditions", the Court struck
down the conclusion reached by WMB that the slough was not part of the
lake. Upon finding that the presence of the road was potentially irrelevant,
since the OHWM that was applicable to the lake was also applicable to the
slough, the Court remanded the matter, to be resolved on the basis that the
location of the true boundary of the lake must be established by determining
whether or not the slough "is capable of use by the public for public
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purposes".
Prior to 1937 - During the original GLO surveys, a certain particularly
shallow and flat bottomed lake, which would come to be known as
Rush Lake in Day County, was meandered and found to cover about
3000 acres. Whether this lake was situated within one township or
extended into two or more townships is unknown, but apparently the
extent of the area covered by the lake remained approximately the
same for several decades. No details are known about the settlement
or original ownership of the land surrounding this lake, but Hillebrand
eventually came to own some, if not most, of the riparian government
lots that had been platted all around the lake. What actual use he made
of these lands, if any, or of the lake itself, is unknown, and he may or
may not have lived anywhere near the lake, but his title to the
adjoining lots was unquestioned. During the 1930s, South Dakota,
along with several other plains states, experienced severe drought
conditions that would come to be known as the Dust Bowl, and Rush
Lake was evidently among the victims of this sudden and extreme
climatic alteration. At an unspecified date, presumably during the
early 1930s, the lake dried up completely and appeared to be destined
never to return to existence. Knapp evidently noticed that the lake bed
had dried up completely, and he also saw that a substantial crop of
prairie hay was growing where the lake had been, so he decided to
harvest the hay, and he proceeded to do so at least once, and perhaps
repeatedly. Whether Knapp owned any land fronting upon the lake, or
anywhere nearby, is unknown, it appears that he did not however,
since he claimed only the right to enter the lakebed as a member of the
public, and not as an owner of any adjoining property. Whether or not
any public roads existing at this time ran directly to the lake is
unknown, so whether or not Knapp crossed any private lands owned
by Hillebrand or others in reaching the lake is unknown, but there is
no indication that he was ever stopped by anyone when entering or
exiting the area, and apparently no one ever expressly challenged his
right to access the lake. Whether or not any other parties ever used
any portion of the dry lakebed, or attempted to make any use of it, is
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unknown, Knapp may have been the only party who ever actually did
so. For unknown reasons, Hillebrand evidently became very
aggravated about the presence or activity of Knapp upon the land that
had comprised the lake bed, so he filed an action against Knapp,
seeking to have him judicially compelled to cease his use of the
lakebed and return to the lake no more for any purpose.
Hillebrand argued that Rush Lake had never been navigable, based
primarily upon the fact that it had vanished, but also upon the absence of any
evidence that it had ever been put to any substantial or meaningful use by
the public, so he owned not only the upland portion of his lots as platted, but
also those portions of the lakebed bordering his lots, extending all the way to
the centerpoint or centerline of the lake, which evidently amounted to a very
substantial part of the lakebed, if not the majority of it. Alternatively,
Hillebrand argued that if the lakebed should be deemed to be navigable, then
it's disappearance should be treated as permanent, and the entire lakebed
should therefore be classified as relicted land, which he had acquired as it
attached to his riparian lots. Knapp argued just the contrary, that the lake in
question was indeed navigable, and it had always been navigable, and it
remained navigable in theory at least, despite being dry, because there was
no conclusive evidence that the dry conditions were permanent, and no
public rights can be lost solely upon speculation that such a lake might never
return to it's former useful condition and again become a valuable public
asset. The trial court found that the lake could no longer be properly
considered navigable, being apparently extinct, and thus held that Hillebrand
owned whatever portion or portions of the lakebed could be legitimately
claimed by him, so he had the right to exclude or eject Knapp, or anyone
else, from any such portions of the former lakebed.
In analyzing the scenario presented by this conflict, the Court engaged
in a review of many of it's own previous riparian decisions, all of which we
have already discussed herein, and since many of those cases were quite
comparable and highly relevant to the matter at hand, the Court was
naturally inclined to follow in the footsteps of the previous generation of
Justices in reaching it's conclusion here. Once again the principal issue was
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the navigability status of the body of water at the heart of the controversy,
but in this instance the Court paid little attention to the relevant GLO plat or
plats, and did not concern itself with either the location or the significance of
the meanders that the GLO had run around the lake, instead focusing
exclusively on it's view of how navigability should be evaluated, though in
reality the Court may well have taken the presence of the meander line as a
tacit invitation to declare the lake navigable. The treatment of this situation
by the Court reveals the serious concern that it has for the proper protection
of public rights, as demonstrated in the Anderson case of 1916, in which the
Court deemed a lake that was subject to frequent and severe fluctuations in
water level to be nevertheless navigable, in contrast to the lake that appeared
in the Olson case of 1894, which the Court had deemed to be non-navigable,
on the grounds that there was no evidence that it might ever refill and return
to a useful condition. One might suspect that the Court would find the utter
emptiness of Rush Lake in 1937 to be more directly comparable to the
conditions of the Olson case, than those of the Anderson case, in which the
specific history of the lake at issue was especially well known and
documented, but in fact those two former cases actually stood on opposite
sides of a great judicial divide, which the Court had no intention of crossing
back over. The judicial trend toward enhanced protection of public rights of
many kinds had found traction and gained momentum around the turn of the
century, and the judicial perspective on navigability had been drawn along
for the ride, into the modern era of advanced technological capabilities, so
the influence of the Olson case upon the Court was limited, and the trend
toward broadening the definition of navigability, which was well illustrated
by the Anderson case, was destined to carry the day. The timing of this case,
taking place as it did during the Dust Bowl years was also very likely critical
to the outcome, since the Court may well have been cognizant that the
extreme weather conditions made proper judgments on such matters
practically impossible at this time, creating the possibility that skewed
results drawn from this time period would be misleading to those reading
case law in the future. Knapp and his legal team very wisely did not attempt
to dispute any of the well recognized legal principles relating to either
navigability or riparian ownership that the Court had previously adopted,
instead they simply emphasized the public value of navigability, and
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maintained that the Court's prior decisions on navigability must logically be
applied to Rush Lake, regardless of it's dryness at the moment, knowing that
the Court is always highly reluctant to allow public rights to be extinguished,
leading the Court to opine that:
"the term "navigable" has been extended and includes waters
that are not navigable in the ordinary sense ... whether or not
waters are navigable depends upon the natural availability of
waters for public purposes ... division of lakes and streams into
navigable and non-navigable is the equivalent to a classification
of public and private waters ... The state holds title to the bed of
such lake or stream not in a proprietary capacity, but in trust for
the people ... The owner of land bounded upon navigable waters
has certain rights ... as incidents to the right of soil, itself
contiguous to, and attingent on, the water. In such ownership
they have their origin, and not out of the ownership of the bed
... Such owner has ... the title to the reliction caused by the
gradual recission of the waters, and to the accretion caused by
the deposit of sand, dirt, or sediment thereon ... Plaintiff
contends that when waters recede so far as to be capable, no
longer, of any beneficial use to the public, the lake is no longer
public or navigable and becomes the property of the riparian
owners ... temporary subsidence of the waters ... does not
constitute reliction ... we cannot concede that temporary nonnavigability divests the state of title to the lake bed ... plaintiff
has acquired no vested or prior right to the portion of the lake
bed ... in controversy."
As can readily be seen, the Court was so intent upon protecting the
public value of the water itself, even in it's complete absence, that the Court
looked to the future as the primary justification for bestowing navigable
status upon Rush Lake, instead of looking to the past, and assessing the
historic navigability status of the waters in question at the moment of
statehood, in accord with the federal test for title navigability, which requires
that it be determined on an objective historical basis. Valuable land rights
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had become legally locked in place when each entryman obtained a patent,
and also when each state came into existence, the Court realized, yet the
Court had already taken the position that potential public use of waters is a
valid factor, open to consideration, in deciding the troublesome question of
navigability, as had many other states, and at this point there was simply no
turning back from that established course. This public oriented view of the
navigability determination process would gradually come to dominate
riparian jurisprudence during the twentieth century, as the pressure to protect
or even increase opportunities for public recreation sites to be opened
ramped dramatically upward during the latter portion of the century, driven
by major technological advances in modes of transportation. Drawing no
distinction between navigability for purposes of inherently aquatic activities,
such as boating, swimming and fishing, which take place in the water and
are typically regulated, controlled or licensed, and navigability for title
purposes, which implicitly stipulates utilitarian uses, that equate the land
beneath the water to the land beneath a public highway, the Court could not
accept the lower court's decision in favor of Hillebrand and reversed it,
declaring Rush Lake navigable, leaving Knapp free to harvest the bounty of
it's bed. Adhering to the concept that the benefits to be derived from any
bodies of water which can potentially support recreational activities are
inherently public, and therefore justify protection through title navigability,
first set forth by the Court in the Flisrand case 22 years earlier, as we have
observed, the Court again circumvented the federal mandate specifying that
navigability for title purposes is to be reserved for the beds of waterways
which can be shown to have had demonstrable commercial value upon the
arrival of statehood. The Court had effectively discarded the assessment of
early historic use, or susceptibility to use at the moment of statehood, as
requisite elements of navigability, in deference to the public trust doctrine,
emphasizing the potential for future public use of any and all waters,
distinctly contrary to the federal test for title navigability established by the
United States Supreme Court, which in fact has very often been thus
deviated from by the various states. Interestingly, here again the Court stated
the right of riparian parties to remain in connection with water, but only if
originally riparian, which highlights the fact that in the Walker case, just
previously reviewed, Sorenson did not obtain the disputed portion of Section
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23 on any riparian basis, he originally acquired it through adverse
possession, it just happened to be situated in a riparian zone, which is why
he was able to recover it under the doctrine of re-emergence, after it had
become property of the state, when it was merged into the riverbed. The
rationale of the Court in resolving this case was wise in one sense, as the
Dust Bowl era ended during the 1940s and the lake did indeed return to
existence, yet the idea that any lake that can disappear entirely, even under
extreme conditions, can be properly classified as navigable is highly
questionable, leading one Justice to dissent from the direction chosen by the
majority in ruling that no reliction was manifested even in the bone dry
lakebed. Still, the wisdom of the Court invariably prevails, as Rush Lake did
in fact survive the rigors of the Dust Bowl, and it remains a viable aquatic
resource today.
WALDNER v BLACHNIK (1937)
Less than a month after the conclusion of the Hillebrand case, which
we have just reviewed, the Court found itself called upon to deal with
riparian boundaries once again, this time in the context of an island, for the
first time since the Flisrand case of 1915. The circumstances of this
controversy were very different from those presented by the Flisrand case
however, which as will be recalled featured a relatively small unsurveyed
island situated in a lake, and the primary issue in play on that occasion was
the navigability status of that body of water. By contrast, the source of the
dispute that resulted in the case we are about to review is the obstreperous
movement of the mighty Missouri River, which in times of peak activity,
prior to coming more or less under human control, routinely created and then
destroyed untold numbers of islands, such as the one in focus here, which
was deemed to be large and stable enough to be surveyed and platted by the
GLO. Although detailed analysis of GLO plats is outside the scope of this
book, its notable that the 2 original plats of this township provide an
interesting view of the treatment of islands during the early surveys, as the
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first plat indicates the existence of the island, but only as an amorphous
shape, while the second plat documents the completion of 3 partially
surveyed sections that reach across the river channel and extend onto the
island, as well as the initial surveys of those parts of 5 other sections that
contain no land beyond the island. Once an island is thus platted into
riparian lots for conveyance to private parties, the same riparian principles
and rules that apply to such platted land elsewhere become generally
applicable to the island, and the Court expressly acknowledges that on this
occasion, in recognition of the fact that the owners of islands which were
identified as potentially productive land by the GLO deserve the same
protection afforded to all other PLSS entrymen and their legitimate
successors. Beyond merely extending the basic concept of accretion to
islands however, the Court takes the additional step of explaining that either
accretion or reliction can form a boundary between tracts that are situated on
opposing sides of a river channel, when the channel gradually ceases to
flow, as the last drop of water that completes it's journey down the full
length of the defunct channel, prior to the channel's closure, traces the new
boundary, at the meeting place of the 2 converging masses of accretion.
Although the outcome of this conflict is ultimately inconclusive, and
somewhat unsatisfying in that regard, due to a lack of survey evidence,
which the litigants and their counsel apparently failed to realize would be
required to point to any specific location as a justifiable boundary, the Court
stipulates that any resulting boundary would be impacted by the doctrine of
re-emergence, most diligently championed by the Court, ever since the
Allard case brought it to the Court's attention in 1918. The Court's intense
desire to maintain the integrity of original PLSS boundaries, as established
by the GLO, we learn here, extends even to effectively perpetuating the
lifespan of platted islands, once they have been swept away or fully
submerged, upon the subsequent appearance of another body of land, arising
to occupy the originally platted location.
1861 - The GLO surveyed and platted a certain township through
which the Missouri River runs. The river flows in a southeasterly
direction through this area and there were some large islands in the
river in this area at this time, which were shown in a rough form on
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this plat, but they were not surveyed, so no government lots were
created on any of the islands by this plat.
1863 - A different GLO surveyor performed the subdivision of the
largest island in the township, producing another plat, which covered
parts of 8 sections, and numerous riparian government lots were
thereby created upon this island. The upstream end of the island was
located in the northwest quarter of Section 19, and 5 government lots
were platted in that section, 3 of which were situated along the
northerly edge of the island, across the north river channel from the
riparian lots that had been platted in 1861 along the south edge of
Section 18, as the entire line between Sections 18 & 19 fell within the
north channel of the river. The river was apparently in a high state of
flux at this time however, and the island was evidently undergoing
constant change, because the overall shape of the island was distinctly
different at this time from what it had been just 2 years earlier. There
is no indication that anyone had yet settled on or near this island at
this time.
1870 - Settlement of this area began, and a townsite was surveyed and
platted in the southeast quarter of Section 13 in the next township to
the west, just a few hundred feet northwest of the northwest end of the
platted island. A levee was built along the north edge of the river in
the southeasterly portion of Section 13 to protect the townsite, and
both the town and the island came to be known as Bon Homme.
1881 - By this time, a substantial amount of the northwest end of the
island had eroded away, and accretion to the north bank of the river
had extended Sections 13 & 18 an unspecified distance to the south.
1900 - Blachnik acquired an unspecified number of the lots that had
been platted in the townsite lying along the north edge of the levee.
How Blachnik used his lots, if he used them at all, is unknown, but no
one else ever used any portion of the levee or any of the accreted land
that had developed along the south edge of the levee, directly south of
Blachnik's lots.
1901 to 1936 - At an unspecified time, presumably during the early
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part of this period, the north river channel filled with sediment and
closed, joining the island with the lands lying to the north of it.
Whether or not the island had been settled or acquired by anyone prior
to becoming attached to the north bank is unknown, but at some point
in time, presumably toward the end of this period, the Hutterische
Society evidently acquired the northwesterly portion of the island, if
not the entire island. By the end of this period, Blachnik had been
using all of the accreted land lying directly south of the levee for over
30 years, harvesting trees from that area, presumably for firewood,
and after the channel had closed, his activity had apparently extended
southeast into the area formerly covered by the northwestern tip of the
island, at the time it was platted. Waldner, who was a trustee of the
Society, accused Blachnik of cutting trees that belonged to the
Society, but Blachnik evidently disagreed and refused to cease his use
of the area, apparently unconvinced that the area being claimed by
Waldner was part of the former island, so Waldner filed an action
against Blachnik, seeking damages for the trees that Blachnik had cut,
and seeking to quiet title in the Society to the land lying between the
former island and the levee, on the basis that it was accretion to the
island.
Waldner argued that since the levee had been constructed, and since it
represented a public structure, and Blachnik had never acquired the land that
was occupied by the levee, the land rights of Blachnik ended at the north
edge of the levee and his land had never extended down to the river,
therefore Blachnik was not entitled to any of the accretion that had
developed south of the levee, nor was he entitled to any portion of the
former river channel, so all of the land between the levee and the former
island had legally become attached to the island. Waldner further argued that
since Blachnik did not own the levee, none of the accretion was directly
connected to Blachnik's land, so he could not successfully claim adverse
possession of it, therefore Blachnik had acquired nothing by virtue of his use
of the area south of the levee, and in addition, Blachnik was liable to the
Society for all of the trees he had cut in that area. Blachnik made no effort to
prove that his title, as originally acquired, included or extended beyond the
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levee, he argued instead that he had acquired title to all of the land that he
had been using south of the levee based on adverse possession, regardless of
whether the land in that area represented accretion or was part of the platted
island itself. The trial court declined to accept Blachnik's assertion of
adverse possession and quieted title to all of the land in controversy south of
the levee in the Society, as requested by Waldner, while also awarding the
damages against Blachnik that Waldner had requested, for all the wood that
Blachnik had harvested from the area south of the levee.
At the outset, it should be noted that the lack of historical information
presented by the litigants in this case shows just how difficult it can often be
to obtain potentially key evidence in riparian boundary disputes, as well as
boundary cases of other kinds, and the Court very much appreciates that
difficulty, making it an important factor in the Court's use of adverse
possession as a means of boundary resolution, even where no title conflicts
exist, as previously noted in our review of earlier cases. In this instance
however, the Court did not find it necessary to address Blachnik's adverse
possession claim in order to resolve the matter at hand, because he was the
defendant, and the initial burden of proof always falls upon the plaintiff, not
to conclusively prove that his allegations must prevail, but merely to show
that a genuine issue has arisen that needs to be resolved, and that the
resolution of that issue in the plaintiff's favor could be justifiable, either in
law or in equity. This legal hurdle faced by all plaintiffs is typically a fairly
low one, and it does not often prevent a plaintiff from proceeding to develop
a potentially successful land rights case, but in situations such as the one
seen here, in which the relevant evidence covered a period of 75 years,
during which time the use of the land at issue was very minimal, and the
boundaries in question were in a state of constant flux, that hurdle can
become a serious obstacle to a plaintiff's chances of success. Waldner made
at least 3 critical mistakes in that regard, he failed to present any evidence of
any kind of use of any of the land that he was claiming by any of his
predecessors, he failed to present any expert witnesses to testify concerning
the dramatic changes in the configuration of the island, the accretion, or the
river itself, and perhaps most importantly, he failed to obtain a land survey,
which would have illustrated to the Court where the original boundaries of
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the island in question, as they had been platted by the GLO, were actually
located on the ground. Blachnik did not bring a survey into Court either of
course, but that was no handicap to him, because the legal burden was on
Waldner, as the party who was asking the Court to quiet title to a specific
area, to provide evidence that the boundaries he was seeking to have
judicially confirmed had some legitimate basis, and without a survey, this
turned out to be impossible for him to accomplish. Since Waldner's claim
was based solely upon the record location of the original island, and he had
no basis for any claim through occupation or use of any of the land in
controversy, in order to prove that his rights to the land that had once
comprised the extinct river channel were potentially superior to those of
Blachnik, he needed to present not only evidence of where the boundaries of
the platted island had been, but also evidence showing that the land he was
claiming as accretion had actually attached to the island, rather than the
shorelands. Before Waldner could successfully attack Blachnik's use of the
contested area, the Court stated, minimal though Blachnik's use was,
Waldner had to demonstrate some degree of validity in his own assertions of
ownership, and the Court concluded that his title to certain portions of the
island alone, was entirely insufficient to support his allegations of ownership
extending beyond the platted boundaries of the island, because it could not
be presumed that any portion of the abandoned channel had accreted to the
island.
"where a tract of land that is riparian to a river is completely
washed away and is restored when the river thereafter receded,
the land belongs to the original owner. We believe that such
principle applies where an island is washed away in whole or in
part and then reappears ... The owner of an island is entitled to
land added thereto by accretion ... The fact that accretions to the
island and to the mainland eventually meet affords no reason
for varying the ordinary rule that accretions belong to the land
upon which their formation begins, and from which it extends.
The line of contact becomes the boundary line between the
respective riparian owners ... the accretions to the island and to
the mainland have met ... Blachnik has been in possession ... for
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more than 30 years ... Plaintiffs are asserting no title by
possession ... there was a restoration of land within the original
boundary of the island and ... accretions thereto. It is not
possible with any reasonable accuracy to ascertain the quantity
of the accreted land, or the boundary or line of contact between
the accretions to the island or sand bar and the mainland ...
plaintiffs ... established no title to accretions in themselves."
Purely through his own failure to present sufficient evidence to
properly illustrate the scenario being adjudicated well enough to have a
persuasive effect in his favor upon the Court, Waldner had lost his
opportunity to not only secure the boundaries of the island as originally
platted, but also to quiet his title to the centerline of the former north river
channel, and quite possibly beyond, if he had been able to present evidence
showing that the line of contact was actually closer to the shore than to the
island. So even though the actual conditions on the ground very likely
supported Waldner's claim to at least some significant extent, and the
location of the line of contact, which was the crucial missing piece of
information, in the view of the situation taken by the Court, could very likely
have been discerned with reasonable certainty on the ground, and accurately
shown on a survey, making a convincing presentation for Waldner's use in
this litigation, the Court found itself compelled to reverse the lower court
decision in Waldner's favor. The legal effect of this result, the Court
indicated, was that the litigation had accomplished nothing, because title to
the area in dispute could not be quieted in Blachnik either, since he had not
proven adverse possession, nor had he proven that he was entitled to any
portion of the extinct river channel as accretion, but since Waldner had
proven nothing, the Court struck down the damage award, on the basis that
Blachnik's use of the accreted land must be presumed to be justified, until
such time as the contrary had been shown. Nonetheless, despite the hollow
outcome of this case, which left both parties very much uncertain as to the
actual extent of their ownership rights on the ground, due to their own
negligence in gathering satisfactory evidence or obtaining support from
professionals who could have supplied key testimony, the Court did take
advantage of this opportunity to enumerate and adopt 3 important riparian
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boundary principles pertaining to islands. First, the Court acknowledged that
the fundamental riparian principles of accretion, reliction and erosion apply
equally to islands as to all other kinds of land, so islands can, and obviously
do, often shrink or grow, sometimes very dramatically, through the operation
of these elementary riparian boundary principles. Second, the Court pointed
out that islands do not merge with shorelands, or with other islands, as a
result of either accretion or reliction, so the disappearance or extinction of
any stream or river channel does not operate to destroy or eliminate existing
boundaries, it merely cements the previously mobile boundary in place,
locked down in perpetuity at the location where the last active water ran,
which as we have seen, the Court denominates as the line of contact,
meaning the line up to which the opposing land rights extended, in following
the receding water. Lastly, the Court decided that the doctrine of reemergence must be treated as absolute, so it applies wherever PLSS
boundaries exist, and it applies equally to platted islands as to all other
platted land. Interestingly, given the position on re-emergence taken here by
the Court, if a platted island in a navigable river were to be entirely
submerged by river action, and a different island were to subsequently arise
from the river in a nearby location, and the new island then grew by
accretion or reliction until it covered the platted location of the extinct
island, ownership of the portion of the new island lying within the platted
island location would be lost to South Dakota, and restored to the last private
owner of the extinct platted island, or the heirs thereof.
FIRST CHURCH OF CHRIST, SCIENTIST v REVELL (1942)
As may have been noticed by those who have read all of the material
presented up to this point sequentially, boundary cases were more common
than easement cases during the first half century of statehood, but here we
reach a point of transition, from which easement cases will gradually come
to dominate over boundary cases, most major boundary issues having
already been dealt with by the Court by this time, while easement issues
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were destined to arise with increasing frequency during the era of modern
land use. The conflict that grew into the case we are about to review is
highly emblematic of this transition, from a society in which informal and
undocumented land use was fairly common, and was routinely treated as
acceptable, into a modern society, far more intensively focused upon the
value of every land use, and in this instance that transition resulted in one of
the most frequently cited easement cases in South Dakota history. Although
some degree of irony may be noted, in identifying this controversy as an
easement case, since no easements whatsoever are ultimately found to exist
on any of the properties that are involved, this scenario nonetheless provides
a classic illustration of what the Court sees as the fundamental limitations
upon the creation of easements by unwritten means. Here we watch as the
Court again draws and applies the distinction between an easement and a
license, which as noted in our review of the 1922 Herrick case, defines the
crucial divide between permanent land rights and mere personal privileges
that do not truly constitute genuine land rights at all. As has also been
observed in discussing some of our previous cases, here again we can clearly
see that the passage of time alone does not conclusively create any land
rights, because all undocumented uses of land, even those that have endured
for generations, remain potentially subject to explanation as personal
privileges, if through effective investigation of historic conditions and
developments, convincing evidence to that effect, which is deemed to be
sufficient by the Court, can be presented. The elevated standard of proof that
is required by the Court on this occasion to support a finding of dedication
by means of implication is also noteworthy, since the language used to
define that standard at this time would go on to be reiterated by the Court in
numerous future cases, whenever the evidence of an alleged dedication
proves to be unsatisfactory to the Court, although the Court would remain
generally inclined to view unwritten dedication claims favorably. Likewise,
we look on as the Court here adopts a relatively stern, yet entirely
reasonable, set of basic requirements with which to regulate the application
of estoppel, in the context of easement claims, which the Court would also
quite frequently reference in future cases, when circumstances appear that
lead the Court to find the use of estoppel to be unjustified. In each of these
several important respects, this case serves as a warning to those who may
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unwisely set out to assert easement claims which are inadequately supported
by the evidence that they are prepared to place before the Court.
Prior to 1880 - A group of lots were platted, in a block fronting upon
the south side of Main Street in Lead. The dimensions of these lots are
unknown, but they were presumably typical rectangular lots, and this
block contained no platted alley, so there was no intention for these
lots to be accessed from the rear.
1880 - Esterbrook acquired a lot situated near the middle of this block,
and Caretto acquired the lot lying directly west of it.
1881 to 1911 - Esterbrook was a grocer who operated a store located
in another part of the town, and he kept a team of delivery horses in a
barn that was located in the southwest corner of his lot, so a
passageway, about 10 feet wide, developed along the west side of his
lot, as he regularly took his team on trips beginning and ending at the
barn. Both Esterbrook and Caretto had houses situated near the front
of their lots, but Caretto's house occupied nearly the full width of his
lot, so he asked Esterbrook if he could use Esterbrook's driveway, for
deliveries of firewood or coal, which required access to the rear of
Caretto's house, and Esterbrook agreed to allow Caretto to make such
use of the passageway, which Esterbrook described as an "alley".
Both men were fully aware that the alley was located entirely on
Esterbrook's lot, there was a fence along the lot line between them,
and both parties understood that the fence was located on their
common lot line, so their was never any dispute over the location of
their mutual boundary, and on that basis, Caretto made regular use of
the alley, by virtue of Esterbrook's permission, throughout this period.
The lot lying directly to the east of Esterbrook's lot, and the lot lying
directly to the west of Caretto's lot, also had no driveways, being
apparently occupied by large houses like that of Caretto, so the alley
also came to be used as a means of access to the rear of these other
lots, without objection from anyone. Delivery personnel routinely
parked their wagons in the alley and travelled by foot across the rear
of the Esterbrook and Caretto lots, to reach the rear of the houses
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situated on the adjoining lots. There is no indication that Esterbrook
ever gave express permission to the owners of these other lots to
utilize his property in this manner, but all 4 parties evidently remained
completely comfortable and satisfied with this arrangement as the
decades passed.
1912 - Esterbrook sold his lot to Feeney, and Feeney evidently
allowed the use of the alley by others to continue.
1913 - Feeney sold his lot to Meade, and Meade evidently allowed the
use of the alley by others to continue as well.
1917 - Meade sold his lot to the Church, and a new church building
was erected where Esterbrook's house had stood. The alley continued
to be used just as it always had, undisturbed and in the same location,
for purposes of deliveries to all 4 of these lots, as well as general
access to the church building for all other purposes, but whether or not
Esterbrook's barn still existed at this time is unknown.
1918 to 1933 - During this period, the owner of the lot lying directly
east of the former Esterbrook lot built a garage on the rear portion of
his lot, and this garage faced west, toward the rear portion of the lot
owned by the Church. This lot owner then sought and obtained
permission from some unknown party, apparently representing the
Church, to drive around the west side of the church building and
across the rear portion of the Church lot, and he proceeded to access
his garage in this way on a regular basis. In addition, during this
period the rear portion of the lot owned by the Church came to be
used as a driveway and parking area by church members and possibly
by others.
1934 - Caretto put his lot up for sale and Revell expressed an interest
in buying it, but Revell had concerns about access to the rear part of
the Caretto lot, so Revell ordered a survey, which apparently
confirmed the location of the lot boundaries, but did not indicate that
any access easement existed in the location of the church driveway or
anywhere else south of Main Street. Whether or not Caretto told
Revell anything about the driveway is unknown, but Revell proceeded
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to make a personal investigation of the access situation, and he
learned the full history of the driveway, as described above. Revell
then attended a meeting of a group of church members, at which he
informed them that he believed Caretto had acquired an easement
allowing him to use their driveway. No one present at the meeting had
any experience dealing with land rights, so no one understood what
Revell meant, and therefore no one responded to Revell's suggestion
that an access easement existed upon the property owned by the
Church. Upon getting no response, Revell then offered to purchase the
driveway, but again no one present felt compelled or authorized to
respond, so Revell departed and the matter was thus left unresolved.
Nevertheless, Revell proceeded to acquire the Caretto lot, and he had
the house rebuilt in the same location, and he also had a garage built
behind the house, opening to the east. since he planned to access it by
means of the church driveway. No one ever objected to the ongoing
use of the driveway by Revell or any of his construction personnel
during the construction process. During the course of the work
however, some trees that had apparently stood either on or near the
east line of the Caretto lot were removed, and this made some of the
church members very unhappy with Revell, since they evidently
believed that they had some right or interest in those trees, so they
resented the fact that Revell had removed the trees without consulting
them.
1935 to 1941 - At an unspecified time during this period, the church
members evidently became increasingly unhappy with Revell, and
they eventually decided to legally challenge his ongoing use of their
driveway, so they filed an action against him, seeking to have him
compelled to cease his use of it.
The Church argued that clear evidence existed that all use of the
driveway in question, since it's inception over 60 years before in 1880, had
been expressly permitted by the successive parties who had owned the lot
bearing the driveway, and who were thereby legally authorized to grant such
permission, so all such use had been made under an oral license, and none of
it had been adverse in nature, nor did the use represent a dedication,
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therefore no access easement had ever been created by any such use, and the
Church remained free to revoke that license at any time. Revell argued that
the evidence of verbal permission to use the driveway was unclear and
insufficient, and the use had in fact been adverse to all of the successive
owners of the Esterbrook lot, so a prescriptive easement covering the
driveway had been created, and it still existed to his benefit. He also argued
alternatively that since Esterbrook had made reference to the driveway as
being an alley, and had always treated it as such, and Esterbrook had never
objected to the use of it by anyone, Esterbrook had intended to dedicate it, so
it was actually not just a private easement but a public alley. Revell further
argued that since the church members had seen him openly constructing his
garage, adjoining and facing their driveway, they should be estopped from
thereafter taking the position that he had no right to use the driveway, since
their unjustified silence during the construction of the garage had resulted in
the erection of a building that would otherwise now be useless to Revell.
The trial court agreed with the Church, that the evidence provided no basis
upon which to found the creation of an easement, so no easement of any
kind relating to the driveway in question existed, and the Church was at
liberty to bar any further use whatsoever of the church lot by Revell.
Before examining the details of this conflict, it should be noted that
very ironically, just as in our last previous case, the destruction of trees was
once again here the catalyst that served to ignite what would prove to be a
much larger conflict between adjoining land owners, although the situation
here was of an entirely different nature than that presented by the Waldner
case, showing just how precious and significant trees and other such items
can be to many people. Conversely, in stark contrast to the glaring
evidentiary failures that were referenced in discussing the Waldner case, this
case amply demonstrates the great value of diligence in gathering
comprehensive historical evidence that may prove to be relevant to any land
rights dispute, which enabled the church members to show the manner in
which the driveway in controversy had been used, and most importantly, to
illustrate the true origin of that use for consideration by the Court. The most
critical issue of course, as is always true in the resolution of such matters,
was the intent of the original parties, and the evidence clearly revealed that
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the use of the driveway in question had always been permissive in nature,
strongly suggesting that no permanent rights were ever intended to be
created or granted by Esterbrook or any of his successor owners. The
evidence showing that Caretto had never made any improvements or any
other investments in reliance upon the ongoing use of the Esterbrook
driveway was especially key to the outcome, indicating as it did, that Caretto
realized that his agreement with his neighbor regarding the use of the
driveway was a mere personal privilege bestowed upon him, in the nature of
a revocable license, and not a permanent right in the nature of an easement,
which would have given him the right to insist that the driveway be kept
fully open and available at all times. Revell was a doctor, who was
obviously very intelligent and quite clever, and he attempted to use every
possible legal and equitable mechanism that was potentially available to him
in his defense, but the Court was entirely unimpressed with his positions,
and it was fully prepared to put each of his arguments to rest. Although his
case was doomed by the veritable mountain of strong testimonial evidence
of permissive use of the driveway that was presented on behalf of the
Church, Revell adroitly made several arguments that gave the Court the
opportunity to expound on 3 highly important aspects of easement law, those
being licenses, implied dedication, and estoppel in the context of land use. In
a particularly well organized and well structured opinion, the Court
methodically and systematically marched through the successive defenses
that had been offered up by Revell's legal team, dismembering each of them
individually, on separate grounds, specifically addressing all of the relevant
issues that had been set forth by Revell, and putting the historic use of the
driveway, despite it's overwhelmingly long duration, in context in so doing:
“The court found the use of the driveway prior to 1934 to be
permissive ... this finding must stand ... no different inference
could be legitimately drawn from this evidence ... The use was
not adverse ... therefore the Carettos did not acquire an
easement in the Esterbrook-Church lot ... If this record would
sustain a finding that the Carettos made expenditures or
improvements on the faith of a continuance of the parol license
granted by Mr. Esterbrook ... the field of inquiry thus opened
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would be made interesting ... however ... the record will not
sustain a finding that the Carettos made expenditure or
improvement on the faith of a continuance of the license ... The
license to the Carettos was revocable, personal and
unassignable ... a mere showing of public use of a roadway of
the character under consideration will not support an inference
of dedication ... the record fails to establish an implied
dedication at any time ... such general use was for the ultimate
benefit of immediate neighbors who were not only close
friends, but also business customers ... acts of common
neighborliness ... not sufficient to establish a dedication ...
Revells knew ... that fee title in the driveway was in the Church
... The Church ... sought no advantage of the Revells. It did not
believe the claim of easement to be valid, but hoped a
disposition of the controversy would be effected ... Revells
admit that they were not influenced in their course by that
which the Church did, or failed to do ... estoppel ... is not
available to a litigant as a shield from damage resulting from
his unilateral uninfluenced errors of judgment ... estoppel ... has
no function to perform in such circumstances ... Revell ... must
bear the loss occasioned by his error in judgment."
As we have already repeatedly observed in reviewing earlier cases,
every grantee bears a fundamental burden to take notice of all existing
physical conditions relating to any land acquisition being made by him, and
Revell was evidently quite aware of that, so he knew that he was on inquiry
notice, concerning the lack of access to the rear portion of the lot that he
intended to acquire. Revell very admirably fulfilled his burden to investigate
the visible access problem, but upon discovering that no driveway easement
existed, he then very unwisely chose to simply ignore what he had learned,
and it was this poor decision that cost him his precious status as an innocent
purchaser, in the eyes of the Court. A great lesson is also taught here in
regard to the applicability of the elements of equity to such situations, and
that is the fact that whenever a highly intelligent, erudite, or sophisticated
party, deals with others who are ignorant, uninformed, inexperienced, or
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otherwise below his own professional level, in terms of knowledge, the
professional party bears an elevated burden, to act in a manner that does not
turn the ignorance of the others to his own advantage, so he cannot simply
assume that the plain silence of ignorant parties represents agreement on
their part. A license, such as that held by Caretto relating to the driveway in
question, the Court acknowledged, definitely can become legally irrevocable
and binding, but only when money is expended by the licensee, in justifiable
reliance upon the ongoing existence of the license, while the mere passage of
time, without any such meaningful investment by the licensee, leaves the
license perpetually subject to revocation. A license is necessarily
unassignable, the Court noted, since a license is, by definition, a personal
privilege, that remains always susceptible to revocation, at the discretion of
the licensor, and it cannot become irrevocable, effectively creating an
easement that runs with the land, unless it is relied upon in making
improvements, which Caretto had never done, so no private easement, based
on either prescription or a license that had become binding upon the Church,
existed for Caretto to transfer to Revell. The dedication claim made by
Revell was readily dismissed by the Court, on the grounds that ambivalent or
ambiguous acts do not meet the legal requirements for an implied
dedication, which must be supported by unequivocal and unmistakable
evidence of intent to dedicate, in the view taken here by the Court, stating
that use of a driveway by tradesmen or deliverymen cannot be deemed
public use, because such parties when on a business errand, are essentially
acting as mere servants or employees, so no dedication of any alley by
implication had ever taken place. Lastly, in fully upholding the lower court
decision against Revell, the Court ruled that his assertion of estoppel was
futile, because estoppel requires the presence of 3 vital elements, those being
a lack of knowledge on the part of the alleged victim, such as Revell in this
instance, actual reliance upon misleading conduct by the opposing party, and
results that are truly detrimental to the alleged victim. Revell had certainly
experienced detrimental results, but they had stemmed from his own
mistaken notions, not from any misleading actions, statements or
suggestions of others, and his key mistake had been his false assumption that
the apparent acquiescence of the church members, as manifested by their
plain silence and unresponsiveness to his words and actions, was equivalent
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to agreement on their part, with his own notions regarding the legal status of
their driveway. Revell's unfortunate miscalculation poignantly demonstrates
the very important point that long use alone is not necessarily indicative of
the existence of permanent land rights, although it very often can be, and the
Court had utilized his folly to provide a stern reminder that well defined
legal limitations do exist, governing the creation of easements.
GRAFF v BUDGETT (1943)
One of the most common and most troublesome issues that land
surveyors are compelled to deal with is the presence of ambiguity in legal
descriptions, even if the surveyor is an excellent description writer, the need
to deal properly with problematic descriptions that have been created by
others is inescapable, and our next case focuses squarely on that issue,
revealing the common sense approach that the Court, in it's wisdom, takes to
resolving such matters. While surveyors obviously do not have the authority
to make decisions that are conclusive in nature, or that have any such legally
binding effect as decisions made by the Court, surveyors can nonetheless
benefit from observing that the Court rarely bases it's decisions upon
technicalities, the Court distinctly prefers to produce results that are founded
upon principles of justice, and as exhibited here, that applies to conflicts
over the validity and meaning of descriptions of land rights. While poor
descriptions can and often do cause boundary controversies, they can just as
easily create problems for holders and users of easements, or for the owners
of land burdened with an easement, and as noted in discussing this case, the
same basic principles of both law and equity that apply to boundary
resolution can be applied equally well to the resolution of easement issues.
The case we are about to review is one of many that came to the Court twice,
in this instance because on the first occasion the Court recognized that the
dispute had not been fully resolved, since the location aspect of the
controversy had been neglected, even though the lack of clarity in the
location of the easement at issue was the true source of the litigation, and in
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fact the presence of that ambiguity represented the only basis upon which
the validity of the easement could be challenged. As will be seen, once the
trial court deals with the description issue and eliminates the description
ambiguity, exercising the principle of monument control, by treating the
roadway in question as a physical object equivalent in controlling force to a
monument, the Court fully supports the outcome, satisfied that both the title
and boundary aspects of the matter have been properly adjudicated, upon the
second visitation of the case. This thorough treatment of the situation
presented here clearly illustrates that the Court can and does distinguish
location issues from title issues when necessary, showing that the Court fully
understands and appreciates that vital distinction, and will require it to be
properly addressed whenever doing so serves the ends of justice. Here we
also learn that when a material difference between a loosely described
easement location and the location actually used on the ground exists, the
Court is inclined to welcome and embrace a solution that adapts the
inadequate description to the physically established location, by approving
the concept that such rights are best defined by the location that has been put
into actual use. In addition, the result produced here foreshadows future
decisions of the Court on the topic of easement relocation, by demonstrating
the Court's tendency toward flexibility when dealing with location issues, as
well as the Court's acceptance of acquiescence as a factor in defining
locations of land rights.
1913 - W. Budgett owned a certain platted lot in Sioux Falls, which
was bounded on the west by Phillips Avenue and on the north by a
railroad right-of-way, with adjoining lots lying to the east and to the
south of it. This lot had 85 feet of frontage on Phillips Avenue, but it
was only 69 feet in width in the rear, because the railroad ran on a
bearing that was somewhat south of due east, and this lot was 158 feet
in depth. There is no indication of how or when W. Budgett had
acquired this lot, but his title to it was never questioned, and at this
time he conveyed the south 41 feet of his lot to G. Budgett, who was
apparently either a brother or a son of W. Budgett, while W. Budgett
continued to own and reside upon the north 44 feet of the lot. There
were existing houses situated on the front part of both the northerly
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portion and the southerly portion of the Budgett lot at this time, which
prevented direct vehicular access to the rear of the lot from Phillips
Avenue. A trail or pathway of some kind that was evidently suitable
for vehicular use did exist however, running inside the railroad rightof-way, along the south side of the track, and the railroad right-of-way
was evidently unfenced, so it was possible to drive into the rear part of
the Budgett property from Phillips Avenue by following this route and
then turning south after passing the north house. W. Budgett also had
a garage that was located in the northeast corner of the Budgett lot,
and this garage had been constructed facing north, so W. Budgett
could access it by driving inside the railroad right-of-way, and then
turning south into the garage, which he had been doing for an
unspecified length of time. Whether W. Budgett was using the
railroad right-of-way for his own access purposes surreptitiously, or
through permission from the railroad, is unknown. Whether or not G.
Budgett ever used this same access route as a way of driving into the
rear part of the southerly portion of the lot that he acquired at this time
is also unknown.
1919 - G. Budgett conveyed the same portion of the Budgett lot that
he had acquired 6 years before to Park, and Park evidently intended to
build a garage in the rear of this property, behind the house, so he
wanted to insure that he would have the right to drive into the rear
portion of his property by crossing the northerly portion of the
Budgett lot, which was still owned by W. Budgett. Therefore, on the
same day, W. Budgett conveyed an access easement to Park,
apparently intending to grant Park the right to drive across the
northerly portion of the Budgett lot in order to reach the rear part of
the southerly portion of the Budgett lot, which Park had just acquired
from G. Budgett. The easement description created at this time would
prove to be highly problematic however, because depending upon
how it was interpreted, it defined a route that potentially ran right
through both the house and the garage that were located on the
property that was still owned by W. Budgett. Who wrote this access
easement description is unknown, presumably it was either written by
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W. Budgett himself or by someone acting on his behalf.
1923 to 1940 - After apparently making no use of his access easement
for 4 years, Park began utilizing the roadway that was situated inside
the railroad right-of-way, and he also regularly drove across the
middle of the northerly portion of the Budgett lot, to reach the rear
part of the Park property. At an unspecified date during this period W.
Budgett evidently either died or moved away, leaving G. Budgett as
either the owner or the tenant of the northerly portion of the Budgett
lot. No one ever objected to the location of the path across the Budgett
property that Park had chosen to drive upon, although it was not in the
location that had been described in his access easement deed, so he
continued driving through the middle of the backyard, between the
Budgett house and the Budgett garage, throughout this period. At an
unspecified date, evidently near the end of this period, Park conveyed
his property to Graff, along with his access rights, and Graff
commenced to drive the same path running through the backyard of
the Budgett property, just as Park had always done, but G. Budgett
objected, and directed Graff to stop driving through his backyard.
Graff then filed an action against Budgett, and Graff prevailed, as the
trial court upheld the validity of the access easement, but the trial
court did not specifically address the fact that the location being used
by Graff was not the same location that was described in the 1919
easement deed to Park, so the dispute between Graff and Budgett
remained unsettled, and Budgett chose to appeal the matter to the
Court.
1941 - The case came to the Court for the first time, and the Court
reversed the ruling of the trial court, on the basis that the lower court
had improperly confirmed the existence of the easement in question,
without addressing or defining the location of the access rights held
by Graff, so the matter was returned to the lower court and a new trial
was held, with the objective of fully adjudicating the location issue, in
addition to revisiting the determination relating to the existence of the
easement.
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Graff argued that the access easement that had been granted to Park in
1919 was perfectly valid, and that he was entitled to utilize it just as Park
had, since he was the grantee of Park. He further argued that although the
location of the easement, as it was described in the 1919 deed, was either
unclear or incorrect, this could have no impact on the validity of the
easement, because the truly intended location had been clearly established
on the ground, through the use of the easement that had actually been made
by Park for many years, without any protest or interruption by anyone. Graff
therefore maintained that he had the right to drive the same route across the
Budgett property that Park had always driven, regardless of where the
described location of the easement was, because the actual route had been
physically defined, and it was clearly visible and in active use, at the time he
acquired his property and his access rights, so he had the right to rely on the
existing visible easement location. Budgett argued that the easement in
question should be declared to be invalid, because the description by which
it had been created was too unclear and ambiguous to define any specific
location, and an easement cannot exist without a clearly defined location,
nor can an inadequate easement description be changed based on any
evidence that arises subsequent to the deed in which it was described. He
further argued that the description of the easement indicated that there was
never any intention to place the easement anywhere on the Budgett lot, so if
the easement did exist at all, it was not located anywhere on the Budgett
property. Therefore, Budgett asserted, Graff had no right to drive anywhere
on the Budgett property, including the location that Park had used, because
Graff could not prove that the location Park had used was the originally
intended easement location, since that location had never been described as
being part of the easement in question. The trial court once again held that
the access easement had been legitimately created and conveyed, so it was
valid, and Graff had the right to use it, just as the trial judge had ruled at the
conclusion of the first trial, but this time the trial judge took the additional
step of defining the location that had been used by Park with metes and
bounds, effectively reforming the ambiguous 1919 easement description, on
the basis that the location used by Park did in fact represent the best
evidence of the true originally intended easement location.
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The first important issue presented by this scenario, the Court
recognized, was the fact that the determination of the validity or existence of
the easement in dispute represented one distinct legal question, while the
location of the easement on the ground represented a separate legal question,
with the former question necessarily being the primary one, and the latter
question being secondary in nature. This relationship between the existence
and the location of an easement is precisely analogous to the distinction
between title issues and boundary issues, because in both instances two
determinations must be made, to fully resolve the separate matters of
ownership and location. In many situations however, as we have observed in
discussing several of the boundary cases that we have reviewed, location
issues have a direct bearing upon title issues, and that was true here, since
the location of the easement in question would determine whether or not,
and to what extent, that easement burdened the title to the Budgett property.
Under a highly strained interpretation of the easement description, Budgett
asserted that it was not located on his property at all, stating that it had really
been intended to follow the road that was located inside the railroad right-ofway, and to run around the north and east sides of the garage that sat it the
extreme northeast corner of the Budgett property, which would obviously
place the easement completely on property owned by others. Budgett
maintained that this was the only logical interpretation of the easement
description, because if the easement were any further south or west, it would
run through the Budgett house and the Budgett garage, which was clearly
not possible and could not have been intended. The Court quite rightly
deemed this position to be completely untenable however, because the
easement deed both openly and implicitly indicated that the right of passage
being created and conveyed was located on the property of W. Budgett, the
grantor, and also because it is not possible for anyone to successfully create
or grant an easement over any property that is not owned by the grantor.
Therefore, the Court found that the easement had been legitimately created,
and legitimately transferred to Graff, so it did exist as a burden upon the
Budgett lot, regardless of how well or how poorly it's location had been
described, because it was clear that W. Budgett had intended to convey an
easement to Park, and the only place that such an easement could possibly
be created by W. Budgett was on the portion of the Budgett lot that was
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owned by him at that time. For the same reason, the Court dismissed the
suggestion raised by Budgett that the ambiguity of the easement description
nullified the easement, because the validity of an easement is controlled
solely by the fact that the grantor intended to create and grant a specific
right, such as a right of passage in this case, and additional evidence can
always be introduced to clarify the separate issue of where the easement is
located, so no lack of clarity in describing an easement location can operate
to completely destroy the easement. Having thereby narrowed the conflict
down to the true core issue, which was where the easement was really
intended to be, the Court stated it's perspective on the situation, first quoting
in part from the description in controversy, before proceeding on to assess
the description's intent and to announce the result of such ambiguous
description language:
“Whereas the grantors are seized of an estate in fee simple ...
Whereas the grantee is seized in fee simple of the south 41 feet
... said grantors have agreed ... to grant an easement or right-ofway over a private road and across the east end of said premises
of the grantors to provide ingress and egress to said grantee to
the east end of his said premises ... the grantors hereby grant
unto said Park, his heirs and assigns, full and free right ... to
pass and repass along said private road that is next to the rightof-way ... of the width of 12 feet as ingress and egress from
Phillips Avenue to the back end of the grantee's property and
across the back end of grantor's land ... (The Court resuming)
the parties intended to create a right-of-way at some point on
the back end of the grantor's property ... the right-of-way
granted across the back end of grantor's land by the deed is
indefinite in location, and has been treated so by the parties
since the making of the deed ... the term "back end of grantor's
land" was used in the deed, we believe, only in a general way,
and not with the intention of referring to the rear twelve feet of
the grantor's lot ... the location of the right-of-way in the deed
was indefinite ... the parties did not consider the way definitely
located by the deed ... the deed being indefinite, it was within
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the authority of the trial court to locate the way ... In view of the
... acquiescence in the use of the driveway since 1923 ... the
location ... should not be disturbed."
Since the trial judge had taken the extra step of expressly describing
the location that had been used by Park with metes and bounds, locking
down it's location, the Court was comfortable with the outcome, and
therefore upheld the ruling of the lower court in favor of Graff in all
respects, upon this second review of the matter, although one Justice did
dissent this result. Despite the fact that the final location of the easement was
about 50 feet west of the rear lot line, slicing right through the middle of
Budgett's backyard, the Court did not characterize the easement as having
been relocated, the Court instead took the position that since this location
was within the rear half of the Budgett lot, it satisfied the call in the
description for the easement to be located at the "back end" of the lot. This
decision by the Court clearly reflects the Court's strong focus on protecting
the interests of innocent grantees, such as Park and Graff, while holding
grantors fully accountable for their description failures, particularly when
negligent behavior on the part of the grantor is apparent, and that was
certainly the case here, since W. Budgett had planted the seeds of this
conflict, by granting Park an easement in a location that was impossible to
use, due to the presence of the Budgett house and garage. In the view of the
situation taken by the Court, the fact that Park had adopted another location,
and the Budgetts had both tacitly approved that location with their
acquiescence, indicated that the route that was actually driven represented
the truly intended easement location, to the satisfaction of all parties, making
it binding by virtue of the deed, so the new location did not represent a
deliberate or intentional relocation of the easement, it merely solidified the
unclearly described original location. The principle thus applied by the
Court, as can readily be seen, was none other than the principle of
monument control, typically applied to boundary disputes, since just as in
the boundary cases, the Court here treated the physical evidence as primary,
allowing it to control the described location, just as an original survey
monument controls over the numerical calls in a boundary description,
showing that the Court saw the path driven by Park as a monument, allowing
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the description to be corrected to conform to the location that Park had
physically established on the ground. The fundamental mistake made by
Budgett was that he failed to realize that the rights of Graff were just as
strong as the rights of Park, and in fact Graff's rights, as the innocent grantee
of Park, were legally identical to the rights that Park had established,
because Park had acquired a permanent right of passage over the Budgett
property, which could not be unilaterally retracted or eradicated by Budgett
on the mere basis that it had been poorly described. Budgett failed to realize
that by allowing Park to use any route other than the one that had been
described, he had effectively consented that the route used by Park was the
genuine original location, and the Court naturally declined to allow Budgett
to deny that, since doing so would result in damage to the rights of a
legitimate successor of Budgett's own grantee. At the core of Budgett's
argument was the notion that no easement can ever be relocated through the
use of a variant location, so every easement must be declared to be either
valid or invalid based on it's described location, but this was a notion that the
Court was quite rightly not prepared to accept, and as we will see in future
cases, the Court would later go on to formally adopt the easement relocation
doctrine, which stands directly contrary to the position that was
unsuccessfully set forth by Budgett on this occasion. In conclusion, this case
provides a classic example of the kind of massively expensive and purely
unnecessary litigation that can result from a poorly written easement
description, and it also illustrates the fact that the Court wisely declines to
allow either grantors or their successors the opportunity to benefit from their
own carelessness in the use of description language.
DAILEY v RYAN (1945)
Here we encounter a highly unusual case in which a boundary
agreement between two states proves to have a controlling influence over the
subsequent application of riparian boundary principles, which would
otherwise have controlled the state boundary. The Missouri River, along
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with being a principal artery of commerce traversing the upper Midwest,
was also a source of trouble and consternation for those whose land holdings
were at it’s mercy, so its not surprising that many efforts of various kinds
were made to reduce the impact of the river’s activity upon adjacent lands.
The consequences of one such effort, not to physically control the river’s
movement, but to eliminate it’s ability to relocate boundaries, are well
illustrated in the case we are about to review, which concludes with a very
interesting twist, brought into play by the diverging opinions of two
adjoining states on the concept of re-emergence of land that has once been
devoured by a navigable river. In this instance, applying the perspective of
another state to the issue of re-emergence, since the land at issue originated
in that state, the Court in effect temporarily sets aside it's own previously
stated perception of re-emergence, which would have produced a contrary
outcome. Vaulting 6 decades ahead to another riparian case, this time
centered upon the issue of navigability, we find the Court once again
demonstrating flexibility, in recognition of diverging views on that riparian
topic, in the 2004 case of Parks v Cooper. Parks and a large number of
others were the owners of land surrounding 3 bodies of water situated in Day
County, alternately known as lakes or sloughs, which they felt were clearly
non-navigable waters, leaving the land beneath those waters in their
ownership, but the Game, Fish and Parks Department, represented by
Cooper, chose to assert that those waters were public, and evidently set forth
plans to facilitate use of those areas by the public. Both the definition and
the relevance of navigability were thus at the core of this controversy, and as
has been noted herein, the Court had repeatedly and consistently maintained
that navigability is to be determined liberally, in order to maximize the
benefit of all waters to the public. The Parks group filed an action against
Cooper and several other state officials, seeking to halt their plans to put the
areas in question into public use, on the grounds that the private land owners
had the right to control all use of any such waters resting upon private land,
and the submerged land must all be deemed to be private, because none of
the bodies of water at issue had ever been meandered. A circuit court
decided the matter in favor of the land owners, agreeing that the waters were
certainly non-navigable, and the submerged land was therefore private in
character, but the Court elected to take this opportunity to adjust it's position
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on navigability, while yet upholding public use of all waters. Mitigating it's
long established stance on the validity of recreational use, as a test of title
navigability, the Court effectively conceded that unmeandered waters cannot
be deemed navigable, and thus confirmed the ownership of all of the land
beneath the disputed waters by the members of the Parks group. This proved
to be a very hollow victory for the land owners however, as the Court then
went on to declare that the public trust doctrine pertaining to the use of all
water must prevail over navigability, reversing the lower court decision, on
the basis that private ownership of the underlying land cannot be allowed to
block the use of such waters for public purposes. The Court had thus
modified it's own long standing definition of navigability for purposes of
title, to better align it with federal standards, but had simultaneously
rendered navigability essentially irrelevant to conflicts over proposed public
uses of water itself.
1900 - The Missouri River formed a portion of the boundary between
Nebraska and South Dakota, with Dakota County being on the
Nebraska side and Union County being on the South Dakota side, and
that portion of the state boundary was subject to constant change, as
the river ceaselessly moved in accord with the will of nature. Section
36 in a certain township had been located entirely on the Nebraska
side, when it was surveyed and platted by the GLO, but by this time
the southward migration of the river had begun to submerge an
unspecified amount of Section 36, apparently located in the northerly
part of that section. Since Section 36 was a school section, it had been
owned by Nebraska from the date of it's creation, and it had never
been conveyed by Nebraska to anyone.
1905 - Evidently concerned about the ongoing movement of the river
in this area, Nebraska and South Dakota reached an agreement
making the 1905 location of the river the permanent boundary
between those two states, and the river location that was the focus of
this agreement was apparently surveyed and documented to the
satisfaction of the United States Congress, which approved this
agreement. By this time the river had evidently moved further south,
and about 30 acres of Section 36 had emerged from the river on the
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South Dakota side. Whether or not any use was being made of that 30
acres by anyone at this time is unknown, and it's specific location
within Section 36 is also unknown, but presumably it was situated
somewhere along the north line of that section, as it had been
originally platted.
1911 - By this time, the river had moved still further south, exposing
an unspecified additional amount of land in Section 36 on the South
Dakota side, adjoining the 30 acres previously referenced. Stevens
apparently took possession of all of Section 36 that was north of the
river at this time, which may have embraced scores or even hundreds
of acres, by placing all of it under cultivation. Presumably Stevens
was the owner of the adjoining land in Section 25 directly to the north,
which had originally been bounded on the south by the platted
location of the river, and he simply extended his area of cultivation
farther and farther south, year after year, as the river continually
exposed more land, but nothing more is known regarding the origin,
size or location of his land holdings.
1915 - Union County began taxing all of the lands that had accreted to
the north bank of the river, including all of the land that was being
utilized by Stevens, along with that of numerous other owners of land
situated in several nearby sections, who had also gained acreage as the
river continued on it's southward journey. A school district also began
treating the accreted lands as part of South Dakota at this time, by
accepting the children of the families occupying such lands into the
local school or schools.
1916 to 1937 - Stevens apparently continued to make use of all of
Section 36 lying north of the river throughout this period, without any
objection to his use of it as cropland. Whether or not the river's
southerly movement continued for most of this period is unknown, but
at some point in time it appears to have stabilized.
1938 - Ryan arrived on the scene, asserting the right to take
possession of the entire portion of Section 36 lying on the South
Dakota side of the river, as the holder of a lease that had been issued
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by Nebraska, covering that portion of the section, and Stevens
evidently turned over possession of the area demanded by Ryan to
him, enabling Ryan to begin using it as cropland just as Stevens had.
1939 to 1944 - At an unspecified time during this period, Stevens
evidently sold all of his land to Dailey, who then decided to challenge
the presence of Ryan, by filing an action against him, seeking to have
Ryan compelled to vacate all of the land that Ryan was using north of
the river, and to have title to all of Section 36 lying north of the river
quieted in Dailey. There is no indication of how the locations of the
boundaries of Section 36 were known, or how much total acreage was
being claimed by the opposing parties, since the portion of that section
that had emerged north of the river had apparently never been
surveyed since becoming exposed, but none of the parties ever
expressly made the location of any of the boundaries of that section an
issue.
Dailey argued that because Nebraska had never asserted any rights to
any portion of Section 36 lying on the South Dakota side of the river, from
1905 to 1938, while Union County had taken official steps that effectively
treated that portion of Section 36 as part of South Dakota, Nebraska had
relinquished any land rights it may have once had in that area, making the
lease held by Ryan worthless, so the land at issue had been properly treated
by Stevens as accretion to the land that he had owned, which had been
conveyed to Dailey. Dailey argued alternatively, that even if Nebraska had
not legally abandoned any portion of Section 36, Nebraska had nonetheless
acquiesced to the complete control that had been exerted over all of the land
lying north of the river by individual citizens of South Dakota, such as
Stevens, so Stevens had acquired title to all of the land that he had put into
use, by virtue of adverse possession, predicated upon the acquiescence of
Nebraska, and all of the land owned by Stevens had been conveyed to
Dailey. Ryan argued simply that Nebraska was the original owner of Section
36, and Nebraska had never conveyed or lost any portion of that section by
any means, so he was entitled to possession of all of Section 36 north of the
river by virtue of his lease, and Dailey had no right to any of it. The trial
court ruled that Stevens had acquired all of the land in controversy by
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adverse possession, and he had conveyed all of it to Dailey, so Ryan had
acquired no rights under his lease, requiring him to turn over possession of
all of the land at issue to Dailey.
The first key point to be noted in discussing this case is of course the
fact that the rights of two states, and not just the rights of the two opposing
private parties, were potentially involved, and the Court was certainly fully
cognizant of the implications that this situation carried for that reason. Cases
in which two or more states are positioned in an adversarial manner toward
one another cannot simply be adjudicated with finality in one state or the
other, and many such cases resulting from boundary disputes or other
conflicts over land rights have been argued before the Supreme Court of the
United States, which has the jurisdiction and authority to conclusively
resolve such matters that involve the interests of adjoining states. The
primary issue in this case therefore, in the eyes of Court, was the question of
jurisdiction, which amounted to a critical threshold issue, because if it were
to prove to be legally necessary to conclusively adjudicate rights held by
Nebraska or South Dakota, in order to settle the matter being contested by
the litigants, then nothing could be accomplished, in which event the Court
would be obligated to dismiss the current litigation, leaving the issues
unresolved. So the first line of reasoning developed by the Court was
intended to establish whether or not any rights of the two states were
necessarily at stake, and it was with that objective at the forefront that the
Court examined the respective positions taken by the parties. No rights of
South Dakota conflicting directly with any rights of Nebraska were brought
into play by either of the litigants, but the rights being asserted by Ryan
emanated directly from a lease issued by Nebraska, which amounted to an
assertion of ownership and control over Section 36 by Nebraska, while the
rights claimed by Dailey, who believed that he had acquired part of Section
36 from Stevens, amounted to a direct challenge to Nebraska's stance on the
ownership of the area in controversy. Although no one appeared to testify as
an official representative of Nebraska, it was clear that the ownership
position under which Nebraska had issued the lease that was held by Ryan
was founded upon the 1905 boundary agreement, and Nebraska considered
Section 36 to be entirely on it's side of the boundary thereby established. It
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may therefore appear at first glance that the rights of Nebraska definitely
needed to be adjudicated to resolve the ownership issue, making it necessary
for Nebraska to participate in the case, in the view of the matter taken by the
Court however, the rights of Dailey and Ryan could be appropriately
resolved without the involvement of either Nebraska or South Dakota, and
the Court proceeded to demonstrate why that was the case. Quoting in part
from two decisions of the Supreme Court of the United States, which had
been rendered in riparian boundary cases that had pitted Arkansas against
Tennessee, and Michigan against Wisconsin, the Court pointed out the
controlling significance of the 1905 boundary agreement between Nebraska
and South Dakota, and also expounded upon the concept that acquiescence
can play a role in legal actions between states, that is directly analogous to
it's role in actions between private parties:
“The first question for consideration involves the territorial
jurisdiction ... Nebraska and South Dakota entered into a
compact ... the compact established a fixed boundary line,
which remained unaffected by subsequent changes in the
channel of the river ... an unambiguous boundary ... long
acquiescence by one state in the assertion of a particular
boundary, or in the possession and exercise of dominion and
sovereignty over territory by another state, is conclusive of the
rightful authority of the latter state ... It is very probable that
Nebraska has neglected to attend to either it's proprietary or
sovereign interests ... South Dakota was reaching it's sovereign
fingers across the boundary so solemnly fixed in 1905 ...
acquiescence ... has long since become generally accepted and
recognized ... No human transactions are unaffected by time. Its
influence is seen on all things ... For the security of rights,
whether of states or individuals, long possession under a claim
of title is protected. And there is no controversy in which this
great principle may be involved with greater justice and
propriety than in a case of disputed boundary ... That rights of
the character here claimed may be acquired on the one hand and
lost on the other ... is a doctrine not confined to individuals, but
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applicable to sovereign nations as well ... The meager evidence
adduced by plaintiffs fails to convince us that South Dakota has
... fastened itself upon that territory ... the trial court was
without jurisdiction of the land located south of the line
described in the compact of 1905 ... thirty acres to which the
jurisdiction of the court extended must ... receive consideration
... It is the settled law of Nebraska that ... an adjoining owner ...
may not reassert his title if the river thereafter reverses it's
transverse wanderings and new land is formed ... this rule
applies to riparian lands held by the State ... Nebraska had lost
it's title to the thirty aces in question before that parcel became
a part of the State of South Dakota."
The 1905 boundary agreement, the Court concluded, without
addressing the wisdom, or lack of wisdom, that may have been embodied in
such an effort to wrest control of a boundary that had originally been very
well defined by a natural monument away from nature itself, had
affirmatively locked down the boundary between the states and counties on
either side of it in perpetuity, thereby making the further migration of the
river irrelevant to the rights of the two states, with respect to each other.
South Dakota had proven to be the loser in that deal, since the river had
continued to move southward for several years subsequent to the agreement,
with no benefit whatsoever for South Dakota, as Nebraska had gained an
ever increasing footprint on the South Dakota side of the river, along with
complete control over the use of, and access to, the valuable resource
represented by that section of the river itself, during the time period
following the ratification of the compact. So although the concept of
acquiescence is applicable to boundary disputes between states, as Dailey
had maintained, and as the Court observed, that principle was of no use to
Dailey, because the evidence of genuine acquiescence in this instance by
Nebraska was insufficient, and even South Dakota itself could not
successfully make any case based on acquiescence against Nebraska, since
such a charge would stand in direct contravention of a solemn mutual
compact that had been forged between the states. The compact was fully
binding and absolute, so no challenge to the rights of Nebraska, south of the
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1905 boundary, could hope to prevail upon any grounds, the adverse
possession claim made by Dailey was utterly futile, because the ownership
of the relevant portion of Section 36 by Nebraska, being public land, was
obviously not susceptible to attack by means of any theories or principles
relating to adverse rights, while Dailey's accretion claim was necessarily
precluded by the very nature and intent of the compact. Having determined
that the decision of the lower court in Dailey's favor must be reversed, with
regard to any land south of the 1905 boundary, since no South Dakota court
could have any jurisdiction over any land situated in Nebraska, the Court
turned to the sole remaining issue, which brought into play the specific
location of the 1905 line. Presumably, the Court had been correctly apprised
of the exact location of the line created in 1905, in relation to the north
boundary of Section 36, by surveys or descriptions associated with the
compact that had been introduced as evidence, and the Court took notice of
the fact that the documentation indicated that 30 acres of Section 36 had
already emerged on the north side of the river prior to the 1905 compact.
Though South Dakota honored the doctrine of re-emergence, as we have
seen in our review of several earlier riparian cases, Nebraska had taken the
position of most other states, denying the validity of that concept, so
Nebraska, the Court noted, had no valid basis upon which to claim the 30
acres of Section 36 that was north of the 1905 line, because it had already
lost that area to the encroachment of the river into Section 36, prior to the
existence of the compact. Since the compact boundary had cut those 30 acres
off from Nebraska, they were part of South Dakota, over which the Court
had jurisdiction, therefore Ryan had no valid claim to that area, which left
nothing to prevent the Court from agreeing with the lower court that Dailey
was fully entitled to that 30 acres, which constituted accretion that was
appurtenant to the land that Dailey had acquired from Stevens, so the Court
remanded the case to the trial court, with directions to modify the judgment
to that effect.
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THOMAS v JOHNSON (1947)
At this point we examine a case focused upon grantor and grantee
relations, much like the 1943 Graff case that we have recently reviewed,
demonstrating the Court's protection of the rights of innocent grantees, this
time in the context of a boundary dispute that takes place in an urban setting.
This case marks the Court's adoption of the common grantor doctrine, which
supports innocent reliance upon specified boundaries and makes the personal
acts of a grantor crucial to boundary determination. Here we observe the
consequences when parties create a new boundary line, but fail to order a
survey to verify it's location, creating a scenario which clearly illustrates the
potential danger, in terms of liability, that may befall a subsequent land
surveyor, should that surveyor misinform a land owner as to what he or she
owns or does not own, based solely upon deed dimensions, even when those
dimensions are unambiguously documented. The primary lesson here is the
value of physical evidence, as valid grounds for the application of the
powerful principle of notice, which was also a major factor in Phillis v
Gross, a case that came before the Court twice, in 1913 and 1917. In that
case, Chamblin was the patentee of a typical quarter section, and he
contracted to convey it to Edgerton in 1898, at which time Edgerton took
possession of it, but Edgerton never made any payments to Chamblin, so
Chamblin sold the same quarter to another party in 1902, and it was then
deeded to Gross in 1905. Edgerton owned an adjoining quarter, upon which
he lived, and from 1898 to 1908, when he died, Edgerton farmed 15 acres of
the Chamblin quarter, while using the rest of it only as a pasture for his
sheep. Phillis was the heir of Edgerton, and she claimed to own the
Chamblin quarter based upon the fact that Edgerton had willed it to her, but
Gross argued that Edgerton had never acquired the quarter, and had
abandoned any interest he ever had in it, by failing to pay for it, leaving
Gross as the true owner of the Chamblin quarter. The Court reversed a lower
court decision in favor of Gross in 1913, and then vacated a subsequent
lower court decision in favor of Phillis in 1917, holding that neither party
had established ownership of the quarter at issue. In so doing, the Court
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denied the validity of the deed held by Gross, upon which he would
otherwise have prevailed, on the basis that the use being made of the
Chamblin quarter by Edgerton, at the time it was deeded to Gross, although
quite minimal, proved that Edgerton had never abandoned the disputed
quarter, and was therefore sufficient to charge Gross with notice of
Edgerton's equitable rights to that quarter, thereby invalidating the deed to
Gross. Quite similarly, in the 1921 case of Whitford v Dodson, Whitford
owned a tract located in South Dakota, while Dodson owned a tract located
in Nebraska, and they agreed to swap their properties, whereupon Dodson
immediately conveyed the Whitford tract to Stevens, while the Whitfords
were still occupying that tract. Whitford subsequently withdrew from the
land swap agreement with Dodson, because Dodson had fraudulently
misrepresented the value of the Nebraska tract, but Stevens claimed that his
deed to the Whitford tract was nonetheless valid and legally binding,
because he was an innocent purchaser, who had no way of knowing that
Dodson had not actually acquired the Whitford tract, forcing Whitford to file
an action to quiet his title to that tract. Pointing out that the Whitfords had
never physically vacated their tract, the Court fully upheld a lower court
ruling that Stevens had acquired nothing, because he had never personally
addressed Whitford about Whitford's rights, so Stevens had failed to carry
his burden of inquiry, and he was therefore not an innocent grantee,
poignantly stating that "a purchaser has no right to give controlling
prominence to the legal effect of the deed, in disregard of possession".
1915 - Johnson's husband acquired two typical rectangular platted lots
in Sioux Falls. As platted, Lot 1 had frontage of 152 feet on 3rd
Street, which bounded that lot on the north, and frontage of 44 feet on
Indiana Avenue, which bounded it on the east, Lot 2 situated directly
south of Lot 1 had the same dimensions, and both lots were bounded
on the west by a 10 foot alley. Two houses stood on these lots, one
occupied the east half of both lots and faced eastward toward Indiana
Avenue, while the other one occupied the west half of both lots and
faced north, with a concrete walk running from the southeast corner of
the house, northward along the whole east side of the house, and
continuing straight north to 3rd Street. The east edge of the concrete
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walk was 90 feet from the west right-of-way line of Indiana Avenue.
There is no indication that the Johnsons ever lived in either house,
presumably these houses were occupied by tenants.
1925 - Thomas and his family moved into the west house, as tenants
of Johnson and her husband. Who was occupying the east house at
this time is unknown. When the Johnsons showed the property to the
Thomases, they indicated that the Thomases would have the use of the
west house and all of the improvements connected to it, including of
course, the walkway leading to that house from 3rd Street.
1934 - Johnson acquired sole ownership of the two lots from her
husband, who subsequently died.
1938 - Thomas wanted to acquire the west house and the
improvements associated with it, and Johnson agreed to sell the house
and the improved area associated with it to him, so Thomas and
Johnson entered a contract for deed. Johnson intended to convey the
full area that Thomas had been using to him, yet for unknown reasons,
the legal description included in this contract indicated that Thomas
was acquiring only the west 52 feet of the two lots.
1940 - In fulfillment of their contract, Johnson deeded the west 52 feet
of both lots to Thomas. A sketch of the area, which was included in
the title package that was presented to Thomas, incorrectly showed
that the two lots were only 140 feet in total length, 12 feet less than
their actual platted length. Thomas and his family went on using the
west 62 feet of the lots, which included the walkway to their house,
just as they always had, never questioning the lot dimensions and
never attempting to verify the location of the house or any other
improvements in relation to the east boundary described in their deed.
1943 - Johnson conveyed the east 100 feet of both lots to Schumacher
and Arne. Once again, no survey was done at the time of this
conveyance, and no attempt was made by the parties to verify the
location of any existing improvements on the ground.
1945 - A survey of the two lots was done, which revealed that the
dividing line that had been created by Johnson's conveyances ran
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through the west house. For what purpose the survey was done,
whether any lot corner monuments were found, and who ordered the
survey, are all unknown. When Thomas learned of this situation, he
filed an action against Johnson, Schumacher and Arne, seeking to
have the description errors corrected and to have title to the west 62
feet of both lots quieted in himself.
Thomas argued that in 1925 Johnson had indicated to him that the
dividing line in question would be located at the east edge of the concrete
walk leading to his house, which would embrace the entire house and all of
the improvements that served it, and that was the true location of the line
Johnson had intended to describe in her conveyance to him, so he was
entitled to the full intended area, despite the erroneous 52 foot dimension in
his deed. Johnson and Schumacher did not respond at all to the assertions of
Thomas, nor did they participate in the litigation in any way, leaving Arne as
the only defendant, and Arne argued that he had no knowledge of any
mistake such as the one being suggested by Thomas, therefore he was
entitled to the full 100 feet stated in his deed, maintaining that he was an
innocent grantee, and no mistake had been made in preparing his
description, so any mistake that had been made in preparing the description
held by Thomas could have no effect upon the rights of Arne. The trial court
found that Johnson had owned 152 feet, and she had conveyed 152 feet, so
Thomas had failed to prove that any mistake had been made, therefore the
dividing line created by the dimensions that were specified in the deeds
controlled, quieting the titles of the parties accordingly, thus leaving Thomas
to attempt to acquire the additional 10 feet beneath his house and walkway
from Arne.
The circumstances of this case, being especially well documented by
the testimony of Thomas, which was based on his own personal knowledge
and experience gained from many years of dealing with Johnson, and which
stood entirely uncontradicted in her absence, provided the Court with an
ideal opportunity to once again demonstrate that boundary and description
issues can be effectively detached from title and ownership issues. The trial
court, the Court clearly realized, had made two fundamental errors in
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analyzing the evidence, first by failing to recognize that the absence of any
title conflict between the deeds did not mean that no mistake had been made
in terms of location when describing the land at issue, and second, by failing
to properly apply the powerful principle of physical notice, which in fact
would prove to be dispositive of the outcome. The Court observed that the 3
grantees all had a common grantor, which meant that their rights all
stemmed from the same party, so they were all equally bound to honor the
intentions of Johnson, as their mutual grantor, and the grantee who was able
to successfully present the strongest evidence of Johnson's true intent would
necessarily prevail. A deed is valid evidence of title and ownership of land,
while a description appearing in a deed is legitimate evidence of boundary
locations, and all presumptions at law stand in favor of such documentary
evidence, the Court understood, so all unambiguous descriptions are
presumed to be correct, and all such descriptions are presumed to represent
the highest evidence of the intentions of the parties to a given conveyance.
The Court also understood however, that no deed represents conclusive
evidence of ownership, nor does any description represent conclusive
evidence of a given boundary location, and a deed can successfully convey
good title and ownership, yet contain an erroneous representation of the
boundaries of that title, and that was precisely what had transpired during the
poorly executed conveyances made by Johnson, effectively turning her
grantees into victims, as a result of their trust in her. Unlike many grantees
who find themselves in such a predicament, Thomas very wisely attacked
his grantor directly, rather than foolishly attacking only the adjoining land
owners, who were victims of Johnson's bogus descriptions, just like himself,
and his very astute decision to challenge Johnson, brought both her
intentions and her culpability directly into play, to the distinct benefit of
Thomas. The absence of Johnson itself, and particularly her failure to testify
at all, though she was still alive, was highly persuasive evidence that she
realized that she had created the problem which had resulted in the present
litigation, and that she would be held responsible for it, should she appear
and testify truthfully. She naturally had no inclination to perjure herself, so
she evidently chose to simply abstain and remain silent, raising no
contradictions to the scenario that she knew would be painted by Thomas,
and which she must have realized would be quite convincing and influential,
399
given the Court's intense desire to resolve all land rights issues in the most
equitable manner. Focusing exclusively on the intent of the original parties,
Johnson and Thomas, the Court very thoughtfully explained why the
reliance of Arne upon the description in his deed was misplaced and
unjustified:
"The decisive question ... is whether the designation of the
eastern line of plaintiff's property by Johnson was thereafter
binding upon the contesting defendants ... Plaintiffs contend
that they are entitled ... by virtue of the line designation to them
by the Johnsons, and ... that the deed from Johnson was
intended to convey to plaintiffs that part of the area long used
as a unit for dwelling purposes, and that ... defendants having
purchased with notice ... cannot be heard to assert ownership of
the area in dispute. Defendants contend that the calls of the
several deeds determine the rights of all parties ... In 1925 the
defendant Johnson pointed to the line of the property and
placed plaintiffs in possession thereof ... Thirteen years later
these parties entered into a contract ... having in mind the exact
area ... plaintiffs had for that period enjoyed as their home ...
The purpose of the deed to plaintiffs was to convey to them that
same area ... Johnson had no thought of doing anything less or
different ... She intended to convey, and plaintiffs rightly
expected to receive, that which had been the subject of their
common dealing ... The minds of the parties had met, but
through mistake the contract and deed ... failed to embrace that
which the parties intended ... plaintiffs are to be regarded as the
equitable owners of the area ... defendants stand before the
Court upon the calls of the deeds to them and nothing more ...
they purchased ... with full notice ... of said home, and of the
appurtenances thereto ... defendants should not be heard to say
now that they bought, and have title to, parts of lots 1 and 2
other than the areas of said lots lying east of the easterly edge of
the walk."
400
In the view of these events taken by the Court, the fact that the deed to
Thomas specified a certain distance in numerical terms was insufficient to
overcome the force and effect of the visible physical conditions on the
ground, so neither Arne nor Schumacher had any right to rely solely on the
fact that the deed to Thomas stated that he had acquired only 52 feet.
Moreover, the fact that the 100 feet recited in Johnson's deeds to her
subsequent grantees clearly intruded into the area occupied by the Thomas
family, her senior grantees, raised an alarm that no subsequent grantee is
entitled to ignore on the basis of stated lot dimensions alone. What Arne
failed to comprehend was that it was not Thomas who had created the
description problem, and in fact as a prior grantee of Johnson, the land rights
of Thomas were entitled to a higher level of protection than those of Arne,
so Arne was bound to honor the ownership rights of Thomas as senior to his
own, and the Court was not about to allow a mere description error to render
the rights of Thomas inferior to those of Arne. Like all subsequent grantees,
Arne stood in the shoes of Johnson herself, which meant that he had
inherited the consequences of her mistakes, and particularly so in this
instance, since he had a full opportunity, the Court noted, to observe and
acknowledge the presence of a significant description error on her part in his
deed at the time of his acquisition. Recognizing the contentions of Arne as
purely opportunistic in nature, the Court saw his suggestion that he had a
right to rely solely upon the dimensions in his deed, in defiance of the
consequences for an innocent prior grantee such as Thomas, as a brazen
attempt to upset the harmonious existing conditions, most certainly
unworthy of any support or reward from the Court, and therefore declined to
uphold the lower court ruling in his favor, instead reversing the decision of
the lower court, and quieting the title of Thomas as requested by him. It can
be fairly said that Thomas was certainly negligent to some extent,
particularly in failing to ever have his property surveyed, which obviously
would have revealed the problem, and ideally he should have thought about
that, and had a survey done, prior to acquiring his property, but this result
well illustrates the fact that in the eyes of the Court, the notion that an
innocent grantee should be penalized for respecting and trusting information
provided by his grantor is an illegitimate one. In the absence of a positive
legal obligation, requiring grantees to obtain surveys before acquiring any
401
property, courts typically hold grantees accountable for failing to order
surveys only under the most extremely egregious conditions, such as
situations in which no physical boundaries are visible at all, so failing to
order a survey, unlike failing to honor visible improvements, typically does
not deprive a grantee of his status as a purchaser in good faith. Its also
important to note that this decision was not simply based upon possession, to
the contrary, since Thomas made no possession based claims, the Court's
decision was expressly based upon intent, with physical evidence serving to
support that intent, by making it plain that no other intent could be logically
attributed to either of the original parties, and with notice as the essential
element making all of the prior acts of Johnson and Thomas binding upon all
subsequent parties, as Arne like many before and after him, learned the hard
way.
PEDERSON v CANTON TOWNSHIP (1948)
Rarely, a case that would appear at first glance to have no relevance
whatsoever to either the ownership or the boundaries of land can become a
significant case in the arena of land rights, when the Court sees that the
scenario provides an opportunity to define or clarify important legal or
equitable principles that extend beyond the basic context of the subject
matter which forms the source of the present controversy. The 1982 North
Dakota case of De Lair v County of La Moure is an ideal example of this, as
in that case the specific event forming the subject matter was a motorcycle
crash, and the essential question was who must bear the liability for the
incident. Because the rider had crashed his vehicle into a gate that crossed a
roadway situated upon a section line, which also happened to represent the
city limits of Marion, numerous issues relating to the jurisdiction over the
exact spot where the crash took place were brought into play. The Supreme
Court of North Dakota used the circumstances of that case as a means of
clarifying, and elaborating upon the importance of understanding, the nature
of the section line right-of-way, and who has jurisdiction over it, including
402
the responsibility to properly maintain it, in any given specific location. The
case we are about to review stands as the South Dakota equivalent to the De
Lair case, remarkably paralleling and foreshadowing that later case, since
the event that triggers this case is also a crash involving only a single
vehicle, which takes place within a section line right-of-way on the outskirts
of a town. Although land rights were not the primary issue here, the Court
was essentially required to address vital land rights principles, in order to
properly explain the reasoning behind it's decision, regarding who must bear
the consequences of the accident, since the allegations made by the plaintiff
bring the proper treatment of the section line right-of-way squarely into
focus. Rather surprisingly, the true nature of the section line right-of-way
remained somewhat obscure and poorly understood, even decades after it's
creation and implementation, despite the fact that nearly everyone makes use
of some part of it, either knowingly or unknowingly, in the course of their
daily activities. Even the meaning and significance of a very simple but
general word, such as "open", can be critical, in the context of a land rights
controversy such as this one, and here the Court endeavors to uncloud such
terminology, by eliminating misunderstandings that are based upon false
assumptions, which are drawn in some instances from misleading previous
uses of such words. In addition, the Court here clearly distinguishes
abandonment from vacation, two words that are often mistakenly treated as
being interchangeable, defining abandonment in terms of existing visible
objects, while reserving vacation to the realm of legal formalities,
establishing definitions for which this case has often been cited in
subsequent right-of-way cases. As we have frequently noted, time can
become a very serious factor in the determination of land rights, yet here the
Court emphasizes, in accord with it's typical vigilance in the defense of all
publicly held rights, that the mere passage of time alone is never satisfactory
evidence of either abandonment or vacation, because intent is fundamental
to both of those concepts, and in the spectrum of public rights time cannot
operate to replace evidence of genuine intent, since plain inaction does not
operate to the detriment of public rights.
Prior to 1944 - Roadways running along certain section lines came
into use around Canton, and under the section line right-of-way
403
statutes, Canton Township took charge of those section lines that were
particularly convenient and useful for typical vehicular travel by the
public and improved and maintained them as public highways, in the
typical manner, like virtually every other such township in the
Dakotas. In one area, about a mile northwest of Canton, a public road
was built running along the north boundary of two sections, and
another public road was built, running south from that road, along the
line between those two sections. These two roads became part of the
Lincoln County public road system, and they were used for many
years in the normal manner by the public, but no road was ever built
running north from the intersection thus formed, because there was a
creek running along a substantial portion of the section line about half
a mile north of the intersection, so the section line right-of-way north
of the intersection had been deemed to be impractical for public use,
and it had never been needed by the public. Payne apparently owned
the land in both sections lying directly north of the intersection, and
he built a plank bridge over the ditch that ran along the north side of
the intersection, which he sometimes used to access his fields from
that point on the public roadway. There is no indication that anyone
else ever actually drove over this bridge, but people who frequently
drove through this intersection naturally became accustomed to seeing
it there, so after several years many people were well aware of it's
presence in this location. Payne apparently did not maintain this crude
bridge however, and at some point in time it either partially collapsed
or became dangerously weak.
1944 - Pederson was apparently a resident of Canton, who was
familiar with this intersection. One night, he was driving north and
approaching this intersection during a downpour at an unknown rate
of speed, but his vision was seriously impaired by the rain and
lightning. He evidently failed to properly slow down as he approached
the intersection, due to being unaware of how close he was to the
intersection, so when he realized where he was, and tried to stop at the
last second, he was unable to do so, and his car proceeded straight
through the intersection at an estimated speed of 25 to 30 miles per
404
hour, directly toward the plank bridge. He was apparently not
particularly concerned however, since he knew that the bridge was
there, so he evidently figured he could safely continue straight over
the bridge and then turn around in the field to return to the roadway.
Fortunately, no other vehicles were present so no collision took place,
but when Pederson's car reached the ditch, the bridge failed to support
the car, which plunged into the ditch. Pederson was apparently not
seriously hurt, but his car was seriously damaged, so he decided to file
an action against the township, seeking compensation for the repairs
to his car, on the basis that the township had failed in it's
responsibility to maintain a safe intersection.
Pederson argued that the public section line right-of-way extended
equally in all 4 directions from the intersection in question, regardless of the
fact that there was no improved road running north from that point, so he
was fully legally entitled to drive through the intersection as he had done,
under his right as a member of the public to use every section line for
purposes of travel, and it was the responsibility of the township to insure that
he could safely pass through the intersection and proceed north along the
section line as he had attempted to do. Therefore, he further argued, the
township was liable to him for the damage to his car, because the township
had failed to place any warning signs anywhere around the intersection to
inform motorists that it might be unsafe to drive north from the intersection,
and the township had failed to place barricades along the north side of the
roadway to clearly indicate that the bridge was unsafe for vehicles and
should not be used for public travel. The township conceded that the section
line right-of-way running north from the intersection had never been legally
vacated, and did still legally exist, so as a member of the public, Pederson
did have the right to utilize that section line for purposes of travel as he had
done. The township argued however, that since the particular section line
running north from the intersection had never been formally opened for
public travel by any local authorities, the township had no duty to maintain
it, and was not responsible for the consequences of any attempts to make use
of it for purposes of travel, so Pederson had chosen to use that portion of the
public right-of-way at his own peril, and the township was therefore not
405
liable to him for the damage he had suffered in so doing. The trial court held
that a section line roadway had been opened and abandoned north of the
intersection, and the township was responsible for maintaining public safety
in the location where the accident had occurred, which it had failed to do, by
allowing an unsafe condition within a public right-of-way to go unrectified
and unmarked, awarding Pederson the damages that he had requested on that
basis.
This case does an outstanding job of highlighting just how poorly
understood the true legal character of the section line right-of-way still was
at this time, even by judges and others with substantial knowledge of the
law, nearly 8 decades after it had come into existence, and how
misunderstood certain essential terminology that was implicitly associated
with the section right-of-way still was as well. The argument made by
Pederson might seem to have been far fetched or even preposterous to some,
but in fact it was no more strained than many of the other land rights
arguments made by a number of the other litigants whose positions are
documented herein, and the fact that Pederson actually prevailed at the trial
court level stands as evidence that both Pederson and the trial judge
misapprehended the legal implications of some highly fundamental words. It
was unquestioned that the incident which had resulted in damage to
Pederson's car had taken place within a public right-of-way, introducing the
possibility of liability on the part of public officials, but the first critical
distinction to be made, the Court realized, was the difference between a
right-of-way and a roadway, and this brought into play the meaning of the
word "open" in the context of a roadway as opposed to a right-of-way. It
must be clarified, the Court recognized, that a right-of-way is an intangible
legal entity, while a roadway is a visible physical object, so those terms
cannot be used synonymously, and while the word "open" applies to each of
them, it applies to each one in a very different sense. The section line rightof-way, being a product of law, has always been open since the time of it's
creation by legislative action, which took place in 1871 with respect to the
Dakota Territory, as previously noted herein, in the sense that the public
right to make use of section lines for purposes of travel has been constantly
in effect, and no further acts of any kind are required to give effect to the law
406
in any given location, so the right to travel every section line has always
remained present and active. An actual roadway however, typically requires
intentional action by local authorities, to conclude and declare that a need for
a road exists in a given location, and of course it also requires some form of
physical action, since the road must be built, even if the construction work
amounts to nothing more than grading dirt or laying gravel, so such a
roadway cannot be properly described as being truly open until some form
of action has been taken by local authorities to make a given section line fit
for public use. Therefore, the right-of-way has always been open, even
though no roadway has ever been opened, in any given location along any
portion of any section line to which the law applies, but until an actual
roadway is opened, inviting public use of a section line, the relevant public
authorities, such as the township officers in this case, can bear no liability
for any incidents, related to travel or otherwise, that take place within the
right-of-way, because public officials obviously cannot be held responsible
for independent acts of private parties. After quoting in part from various
statutes outlining the duties of township officers with regard to the section
line right-of-way, the Court went on explain another important nuance of
terminology that would be vital to the outcome here:
"along the north side of the intersection a plank roadway ...
never maintained by the township ... furnished access or egress
to an adjoining field, but was never used by the public
generally. After removal or deterioration of the timbers over the
north ditch ... the township erected no guard or barrier ... In
1871 there was passed an act ... providing that all section lines
shall be, and are hereby declared, public highways as far as
practicable ... There is along every section line in this state a
public highway located by operation of law, except where ...
vacated or relocated ... The words "as far as practicable" were
omitted from the 1939 Code, but we need not inquire as to the
effect, if any, of this ... Mere delay in opening a section line
right-of-way does not constitute an abandonment ... the word
"abandoned" ... means something different than the mere
relinquishment of the public right ... and is the equivalent of
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"discontinued" ... To make out an abandonment ... it is not
enough to show that a section line right-of-way has never been
opened ... there was not an abandoned highway ... defendant
township owed no duty to the plaintiff to erect and maintain a
guard or barrier and no liability was established."
As noted above, the distinction between a right-of-way and a roadway
is a critical one, that should be properly understood, and those terms should
always be appropriately used, to avoid confusion, but just as important are
the corresponding terms, that come into play when a cessation of use of a
right-of-way or a roadway is intended to take place or occurs, and it was
uncertainty over the proper use and effect of the word "abandon" that the
Court next set out to clarify. Just as the phrase "right-of-way" has reference
only to a legal entity, the corresponding word "vacation" also applies only to
existing rights, as opposed to physical objects, so while a right-of-way can
be vacated, it would be inappropriate to refer to a roadway as having been
vacated, because vacation indicates a formal extinction of rights, and a
roadway is a mere physical object, rather a type of right. The appropriate
term to use when making reference to the closure of an existing road, the
Court indicated, is "abandon", which effectively depicts a discontinuation of
the use of an existing physical object, under the definition adopted here by
the Court, so while a right-of-way can be properly described only as being
either open, relocated or vacated, a roadway can likewise be properly
described only as being either open, unopened or abandoned. Having thus
framed the real matter in dispute, which was the status of the roadway, and
not the status of the section line right-of-way, in the proper terms, the Court
turned to the dispositive question, which was whether or not the section line
running north from the intersection had been accurately characterized by the
lower court as a roadway that had been opened and then abandoned. The
trial judge had correctly stated, the Court concluded, that the section line
right-of-way was indeed open under the law, but the trial judge had then
mistakenly assumed that because the right-of-way was open, the roadway
must also be deemed to have been opened, making it subject to abandonment
if left unattended. No roadway can be abandoned however, the Court
observed, unless it has first been opened, and the evidence clearly showed
408
that no public roadway had ever been opened running north of the
intersection in question, so the trial judge had erroneously identified the
section line in controversy as having been abandoned, when in reality it was
merely one of the thousands of section lines that stand unopened all across
South Dakota, offering a right-of-way perpetually waiting to be put into use.
Since the applicable statute dictated only that the township bore the liability
for any accidents resulting from it's failure to secure any abandoned
highway, culvert or bridge, the Court's determination that no abandonment
had ever taken place in the location at issue sent Pederson's claim down to
defeat, although only a narrow 3 to 2 majority of the Court subscribed to that
view of the situation, approving the reversal of the lower court ruling in
Pederson's favor, as sought by the township. We will examine various
aspects of the crucial relationship between dedication and vacation in detail,
and we will also learn the significance of intent in the context of
abandonment, in future cases, including our very next one, and in so doing
we will watch as the Court diligently strives to achieve and provide greater
clarity as to the proper use of these terms and the important principles that
they represent.
COSTAIN v TURNER COUNTY (1949)
Continuing our review of the historic development of the law relating
to the existence and the implementation of the section line right-of-way, here
we reach a case that may be of particular interest to land surveyors, since it
focuses primarily upon the location aspect of the public rights that pertain
and adhere to every typical section line in the Dakotas. As has already been
outlined herein, the section line right-of-way emanated from RS 2477, a very
basic federal statute, which simply put a general right of public passage in
place, that was then given certain specifications, by means of early
legislation, during the territorial period. Once the decision was made by the
legislature that a public right-of-way attaching to all section lines would best
serve the interests of the people of the Dakota Territory, and the appropriate
409
legislative language was crafted for that purpose, it was obviously realized
that many section lines could never actually be used for travel, because of
topographical obstacles, such as cliffs, bluffs, lakes, swamps or any other
such prohibitive physical features of the natural landscape. People living in
areas where such useless section lines happen to exist however, are no less
entitled to legal access to their land, and no less entitled to benefit from the
federal grant, than those living in flat and dry areas, where the section lines
can readily be used for purposes of travel as envisioned by the law, and this
was understood, so legal provision was made for such situations. Under
certain circumstances, where section lines are physically useless for travel, it
is therefore possible to legally relocate public access routes, that would
otherwise have followed section lines, to a legitimately useful location, in
effect substituting an appropriate location for the legally intended location
along the section line, and this process can be documented in a manner
which clarifies that the public rights associated with the unused section line
have been intentionally relocated, effectively vacating the original location
of those rights along the section line. Many issues and problems can arise in
those instances where such relocation and substitution is necessary however,
including issues relating to the design of any proposed roadway of course,
such as reaching an agreement on what actually represents the best alternate
route, but just as importantly, the issue of whose land will be burdened with
the alternate route, and what compensation, if any, that party will receive for
the legal and physical burden being placed upon their land. In the case we
are about to review, all of these decisions, and the events that resulted from
them, have become buried in the distant past, and the fact that any decisions,
suggestions or promises that were made half a century before the eruption of
the controversy that plays out here were never adequately documented
requires the Court to assess the matter, and determine the consequences for
the litigants. While the Court has always been generally open to the concept
of substitution or relocation of easements, as we have already noted, and as
we will observe again in proceeding through the decades, the result seen
here is indicative of both the Court's well established inclination to protect
all public rights, and it's equally strong disinclination to approve or uphold
the purported abandonment or destruction of any land rights, in the absence
of very clear and convincing evidence of an actual intent to legally terminate
410
any such rights.
Prior to 1898 - One of Costain's predecessors, presumably either his
father or grandfather, settled upon an unknown amount of land
covering parts of at least 4 sections in a certain township in Turner
County, and the land was patented to him at an unspecified date.
When the township had been surveyed and platted is unknown, but the
locations of all of the relevant section corners and lines were evidently
well known and were never questioned or disputed, so the boundaries
of the Costain farm were not destined to become an issue. The Costain
farm straddled the Vermillion River, and it included a substantial
amount of land lying on both the east and west sides of the river. A
certain section line ran north and south, more or less through the
middle of the farm, and there was a section corner on that line near the
center of the farm, but the river meandered along this whole section
line, crossing it in 3 places, making it unsuitable for use as a public
roadway.
1898 - Turner County planned to build a road through the Costain
farm, so one of the county commissioners visited the farm and spoke
with Costain's mother, who was the owner of the farm at this time,
about where a roadway through the farm could be most practically
located. Costain's mother did not object to the construction of a public
road running through her property, she cooperated with the
commissioner, and an alternate route was selected, since utilizing the
aforementioned section line would have required the expense of
building 3 bridges. The route selected ran along the east side of the
river, presumably more or less parallel with the section line, an
unspecified distance east of the river and east of the section line. At an
unspecified point, the route deflected to the west and ran diagonally
across an unspecified portion of the farm, crossing the river just once,
so no portion of the route utilized the section line right-of way, except
of course for the two places where it crossed the section lines that ran
in both cardinal directions through the middle of the farm. This route
was preferable and fully satisfactory to the county, because it required
only one bridge to be built, and it was evidently also satisfactory to
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Costain's mother, who conveyed a right-of-way situated in the agreed
location to the county, so the deal was completed, and the road was
built and put into use by the public. No problems or issues ever
developed with respect to the location of this right-of-way, or the use
of this road, by the public.
1946 - The county decided that another public road running through
the Costain farm was necessary, and the county proposed to build this
road on the section line that ran east and west through the farm.
Costain, who had become the owner of the farm, evidently did not
object to a second public road crossing his land, but he demanded
compensation from the county for the proposed use of another strip of
his land for roadway purposes. The county declined to provide any
compensation however, claiming that since this second road, unlike
the one built 48 years earlier, was going to rest entirely on an existing
section line, the county already possessed the required right-of-way,
so Costain was not entitled to any money from the county. Upon
being so informed by the county, Costain filed an action seeking
compensation for the taking of the intended 66 foot strip running
through his land.
Costain argued that the only existing right-of-way lying anywhere on
the Costain farm was the right-of-way that his mother had deeded to the
county in 1898, because the bargain that was struck with the county officials
by his mother at that time had impliedly, if not expressly, included the
release of all of the previously existing section line right-of-way that had
formerly been located anywhere within the boundaries of the farm, so the
county was legally obligated to acquire any additional right-of-way that it
now desired anywhere within the farm from him. Turner County argued that
none of the originally existing section line right-of-way crossing the Costain
farm had ever been released or otherwise lost by the county, so all of it still
existed and it remained available for use by the public at any time, therefore
Costain had no valid claim to any compensation based on the county's plan
to build a new road on one of the existing section lines crossing his property.
The trial court agreed with Costain that when the county obtained the rightof-way for the existing road from his mother in 1898 it had impliedly
412
released any other right-of-way that it may previously have held, in any
other locations on the Costain farm, in exchange for the right-of-way that
was granted by Costain's mother, so the county was required to pay Costain
for the additional right-of-way it now needed over his land.
At first glance it may be supposed that this was a case involving the
interpretation of unclear language in a deed, but that was not the case,
because Costain never suggested that there was any specific language in the
deed executed by his mother in 1898 that addressed the principal issue in
play here, which was the current legal status of the portion of the original
section line right-of-way lying within his family's farm. There is no
indication that Costain ever even presented the 1898 deed as evidence,
which would have been a catastrophic mistake on the part of his legal team,
had the deed included any language indicating any intention or agreement on
the part of Turner County to relinquish any or all of the section line right-ofway in question, in exchange for the right-of-way conveyance from
Costain's mother, so his mother's deed was evidently of no assistance or
benefit to Costain in his present endeavor. Costain was evidently either a
boy or a young man in 1898, and his testimony indicated that he had listened
to his mother speaking with the county commissioner who visited their farm,
and he had paid close attention to what was said during that conversation.
He testified that the county commissioner had explained to his mother that
the right-of-way needed at that time was the only right-of-way the county
needed or wanted over the Costain farm, and the county recognized that the
section line running along the river was completely impractical and useless
for roadway purposes, and that his mother understood and believed from that
conversation that the county had no intention of ever claiming to have any
right to build any other road anywhere else on her property. While Costain's
testimony gives some appearance of being potentially self-serving, and it is
certainly possible that he was lying, its equally plausible that his memory
was accurate and his words were entirely true and correct, and the Court
appears to have seen and treated his testimony as being fully genuine and
earnest, never alluding to any falsity on Costain's part, so the question was
not whether he was telling the truth, the question was what the real intent of
the parties was in 1898. Even if Costain's testimony was completely true, the
413
Court realized, it was insufficient to support his argument, because there was
no indication that either his mother or the commissioner had ever expressly
stated that the existing section line right-of-way was to be officially released
by the county, and the Court was cognizant that it was quite probable that
Costain's mother would not have fully or properly understood the section
line right-of-way concept, even if the commissioner had made some
reference to it when speaking with her. Who composed the language of the
deed that was signed by Costain's mother in 1898 was unknown, but such a
deed typically would have been prepared by or for the county, and placed
before his mother for her signature, so if an agreement had been made to
release any of the section line right-of-way crossing the Costain farm, by
failing to insist that the agreement must be spelled out in the deed, Costain's
mother had left her son in an unfortunate position, forcing him to depend
upon an assertion of abandonment, as the Court observed:
“"The question of damages depends upon whether there was an
abandonment ... all section lines in this Territory shall be and
are hereby declared public highways ... sixty-six feet wide and
shall be taken equally from each side of the section line unless
changed as provided by law ... federal statute made the
dedication, the territorial statute accepted it, and at the same
time designated the location of highways ... Costains acquired
the land ... burdened with an easement in favor of the public ...
no agreement for the abandonment of the highway easement
involved in this action was ever authorized ... or ratified by ...
the county. Whether such agreement would have been valid if
made, need not be decided ... the abandonment of a section line
right-of-way is not established solely by evidence that it has
never been opened ... The easement was never lost ... the county
had the right to build the highway without compensation to the
owners of the land."
If the county commissioner had in fact made any promises to Costain's
mother, regarding possible future use of the section line right-of-way, the
Court pointed out, they were promises that he was unauthorized to make,
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and no such promises could be treated as binding upon the public, since no
public officer has any power to act outside the limits of his authority, or
without proper ratification of any such commitments concerning public
rights that he might, as an individual, wish to make. So the question of
whether any agreement pertaining to the section line right-of-way had been
reached during the conversation described by Costain was moot and could
not control the outcome of the litigation, because no agreement made in the
absence of authority can operate to damage or diminish any existing land
rights held by the public. It was also possible that the commissioner had
used intentionally deceptive language in that conversation, deliberately
misleading Costain's mother, the Court was quite aware, but Costain did not
assert any estoppel against the county based on what the commissioner had
said, so this issue required no attention from the Court. Estoppel resulting
from the words of a party who was acting in an official role, as a
representative of the public, carries a distinctly higher burden of proof than
that which applies to a charge of estoppel between private parties, so Costain
would have had little chance of success, even if he had elected to plead that
the county should be estopped from claiming or utilizing the section line
right-of-way at issue. In addition, the fact that Costain's position involved
the destruction of existing land rights, as opposed to the creation of rights,
worked heavily against him in the eyes of the Court, as the elimination of
any well established and acknowledged land rights, whether they are public
or private in character, is anathema to every court, and is never favored. As
we have noted in our review of several previous cases, the Court is always
open to upholding land rights agreements made in good faith, on an
equitable basis when necessary, and is even prepared to set aside the statute
of frauds in order to do so, but there is a much heavier burden of proof upon
a party asserting that a destructive agreement should be given legal effect,
than there is on a party who maintains that an affirmative or productive
agreement should be judicially validated. For these reasons, Costain's
presentation was unpersuasive to the Court, which therefore found it
necessary to reverse the lower court decision in his favor, stripping him of
his monetary award. In so ruling, the Court had confirmed the important
principle that since abandonment is a product of intent, it must stem from
some physical act indicating the termination of an existing use, it cannot
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result from a mere absence of any action or lack of any use on the part of the
holder of a valid right, and in the case of an access easement of any kind,
there must be definitive evidence of an intention to permanently forsake or
sacrifice a given roadway, before it can be classified as abandoned, and the
easement associated with it can thereby be legally terminated. Interestingly,
a lone dissenting Justice viewed the road that was built in 1898 as a
substitute for the impractical section line right-of-way running north and
south, and in fact that may very well have been the intent of the parties, but
since there was no evidence that the terrain along the section line running
east and west had ever been considered too impractical to be useful for
purposes of travel, the majority were disinclined to indulge in the
presumption that the existing road was ever intended to represent a substitute
for that location.
KOUGL v CURRY (1950)
Although prescriptive rights and principles have been referenced
several times in reviewing previous cases, such as the 1929 Howe case, in
the context of adverse possession, and they have also been relevant in some
relatively rare right-of-way cases, such as the 1923 Serry case, it was not
until this time that the Court had occasion to squarely and fully address some
of the most important aspects of the concept of prescription. Because the
Court has typically exercised the concept of dedication by implication to
support public access needs, as demonstrated by many cases that we have
reviewed, and because the existence of the section line right-of-way
minimizes the occurrence of private access controversies, a case which
resulted from a dispute over drainage rights, was destined to provide the best
opportunity for the Court to express it's perspective on the applicability and
significance of prescription. In addition to the somewhat unusual subject
matter of this case, it also illustrates how an easement can be extinguished
by physical acts involving visible objects of a permanent character, which
represents an uncommon but legally valid additional means by which land
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rights can be terminated, distinct from either vacation or abandonment. Two
earlier cases centered upon land rights pertaining to drainage, which set the
stage for the case that we are about to review, may be worthy of note at this
juncture, the first being the 1917 case of Thompson v Andrews. In that case,
the litigants were owners of large adjoining tracts that had long been in
typical agricultural use, and the land of Andrews was higher in elevation
than that of Thompson, so surface water had always drained from the
Andrews tract onto the Thompson tract, but after a few years of unusual
rainfall Thompson apparently became aggravated by the increase in the
amount of water draining across his land and filed an action against
Andrews, maintaining that water draining from his land had damaged
Thompson's land. Holding that every upper tract has a natural drainage
easement over every adjoining lower tract, the Court reversed a lower court
ruling in Thompson's favor, formally adopting the natural drainage concept
into South Dakota easement law. In so doing, the Court held that any natural
channel, swale or slope can represent a drainage easement, which cannot be
legally obstructed by the owner of any lower tract without compensation to
the owner of the upper tract. It very quickly became apparent however, that
some restrictions upon the use, and the potential abuse, of such natural
drainage easements would be necessary, and in 1918 in Venner v Olson, the
Court began to put such limitations in place. In that case, Olson owned land
containing an entire meandered lake, and he decided to drain it onto the
adjoining lower land of Venner, thereby flooding the Venner property, upon
which Venner filed an action against Olson for damages. Reversing a lower
court decision that upheld Olson's act as a legitimate use of his natural
drainage rights, the Court stated that the lake constituted a natural drainage
basin, with no natural outlet, so Olson had no right to arbitrarily dispose of
any such water by dispersing it onto Venner's tract, as he had done,
declaring that Olson was liable for the flooding of Venner's land. In a
number of subsequent cases the Court has invoked or approved other logical
and reasonable limitations upon the natural drainage principle, particularly
in urban locations, where original ground elevations have been substantially
altered by grading, in connection with various construction activities,
effectively disrupting or obliterating natural drainage patterns, yet aside
from such restrictions natural drainage has remained a valid land right in
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South Dakota.
Prior to 1916 - A drainage district, which covered an unspecified
portion of Union County, was formed, and ditches were built in
strategic or convenient locations to facilitate more efficient drainage
of the agricultural lands in the area. One such ditch was built along the
east line of a certain Section 7, to carry off surface water draining
from the west, since the natural slope of the land in that section was
evidently from west to east. Who owned the various parts of this
section at this time is unknown, but it was apparently all in regular
productive use as cropland, and Curry's father was farming part, if not
all, of the north half of the section as a tenant.
1916 - The owners of all of the land in Section 7 got together and
decided to try to improve the drainage within that section, resulting in
an agreement to mutually construct a dike running between the north
and south quarter corners, with a ditch along the west side of the dike
to carry the water draining over the surface from the west on to the
north and the south section lines, where other existing ditches would
carry it on to the new ditch running along the east line of the section.
The new dike and ditch were then built running through the center of
the section, and put into use, and no one ever took issue with the
location of the dike, so it was evidently built on the actual quarter
section line as intended. By this time, Curry's father had evidently
acquired the southwest quarter of the northeast quarter, and he was
farming that area, but he was no longer using any of the other portions
of the north half of the section that he had formerly farmed.
1917 to 1923 - The new drainage pattern that had been put into effect
in Section 7 evidently worked satisfactorily and no issues relating to
drainage arose during this period.
1924 - For unknown reasons, Curry's father was asked, by some
unknown party or parties, presumably the owner or owners of the
northwest quarter of Section 7, to sign a disclaimer of interest in that
quarter, and he did so. There is no indication that any boundary
dispute existed, so this disclaimer was presumably intended only to
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clarify and confirm that Curry's father no longer held or claimed any
rights related to his former occupation and use of the northwest
quarter under his agricultural lease, which had expired in 1915.
1925 to 1943 - At an unspecified time during this period, Curry
evidently inherited his father's quarter quarter, and he went on farming
it just as his father had. The use of the rest of the land in Section 7
continued without incident throughout this period, and all of the
property owners were apparently satisfied with the existing drainage
system. At an unspecified time however, presumably near the end of
this period, Kougl acquired the entire northwest quarter of the section,
and at about that time the drought which had persisted throughout the
1930s finally ended, so the conditions on the ground became distinctly
wetter. Kougl apparently became unhappy with the fact that excess
water tended to accumulate in the east half of his quarter, because the
natural slope of the land, to the north and to the south, was evidently
too slight to carry off all of the water from his quarter by means of the
ditch running along the west edge of the dike that had been built in
1916.
1944 - In order to allow unwanted surface water to drain directly
eastward out of the northwest quarter, following the natural slope of
the land, Kougl dug several holes in the dike along the west line of
Curry's quarter quarter, but Curry immediately rebuilt the dike. Kougl
then filed an action against Curry, seeking to have his right to utilize
the natural slope of the land to shed the surface water from his
property confirmed, and to have the dike declared to be an illegal
impediment to his right to maintain the natural drainage pattern.
Kougl argued that the construction of the dike had represented an
illegal act, since the dike prevented him from exercising his right to benefit
from the natural slope of the land, which would enable him to drain excess
surface water off his land by allowing it to run to the east across the land
owned by Curry, if the dike were not there. Kougl further argued that when
Curry's father signed the disclaimer relating to the northwest quarter of
Section 7, he had sacrificed his right to block the flow of water from the
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northwest quarter onto the Curry property, either through the use of a dike or
by any other means, so Kougl had the right to demand that the dike be
removed, in order to allow his land to drain in the natural manner to the east
without restriction. Curry did not maintain that the dike was legal, he
acknowledged that it may have originally represented a violation of the
natural drainage rights that were held by the owners of the west half of the
section in 1916, but he argued that since the dike had remained intact for
over 20 years, the natural drainage easement claimed by Kougl had been
destroyed by the dike, by prescriptive means. Curry further argued that his
father's disclaimer bore no relation to the dike or the drainage pattern, and
related only to potential rights of ownership and possession of the land lying
within the northwest quarter, so he had acquired the right to maintain the
dike in it's existing location, and Kougl had no right to damage or disturb the
dike in any way. The trial court found that the existence of the dike had been
adverse to the rights of Kougl and the previous owners of the northwest
quarter, and the presence of the dike had therefore destroyed the natural
drainage easement relied upon by Kougl, which had previously existed as an
appurtenance the northwest quarter, so Kougl had no right to interfere with
the dike, since he no longer had any right to drain any water onto Curry's
land.
While there have been relatively few prescriptive road and
prescriptive access easement cases in South Dakota, presumably due to the
Court's tendency to employ the principle of dedication by implication rather
liberally, making many prescriptive road claims unnecessary, a fairly high
percentage of all South Dakota prescriptive easement cases, like this one,
have been generated by issues resulting from concerns over irrigation
structures and drainage problems. This case has been subsequently treated
by the Court as having established the standard for the application of the
basic principles of prescription, even though it is not a truly typical
prescriptive easement case, because it involves the destruction of an
easement by means of prescription, as opposed to the creation of an
easement by means of prescription, which is generally far more commonly
seen, since the Court is decidedly more receptive to the creation of rights
than the elimination of rights, as demonstrated by our last previous case. The
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concept of prescription in general, much like adverse possession, exists to
support land rights that are either entirely undocumented, or are directly
contrary to all existing documentation, but while adverse possession is
expressly focused upon the subject of fee title and ownership of land itself,
the concept of prescription is expressly targeted at dealing with rights that
stem from uses of land that do not rise to the level of fee ownership, which
are therefore classified as easements. Prescriptive rights theoretically
emanate from an agreement of some type, typically made in the distant past,
which was either undocumented or improperly documented, making the
subsequent use of the land adverse in nature, due to the absence of any
written evidence of that agreement, and this is known as the "lost grant
theory", upon which prescription, as it was originally applied in the United
States, was predicated. Also much like adverse possession however, the use
of prescriptive principles in our country broadened and expanded during the
nineteenth and twentieth centuries, through judicial use of prescription as a
tool with which to support the creation of permanent land rights, in cases
where the use at issue was not of a magnitude or scope sufficient to justify
adverse possession, through the creation of easements, while leaving the fee
ownership of the underlying land in the possession of the owner of record.
So prescription is applicable, and potentially decisive, the Court understood,
in all controversies that are centered upon the use of land, as opposed to the
ownership of land, such as the scenario presented by this case, in which
Kougl was asserting existing easement rights that were originally
appurtenant to his land, making it the dominant estate or tenement, and
Curry was seeking to prevent any use of his land, which represented the
servient estate or tenement, by Kougl. The existence of the natural drainage
easement claimed by Kougl, when the dike was built, was undisputed in
principle, but dikes and ditches that are systematically constructed, such as
those defended here by Curry, are presumed to have been built with the
intention of being permanent in character and in location, therefore any
detrimental conditions created by them are patently adverse to the interests
of any parties whose land is impacted by such construction, as the Court
explained:
“lower property is burdened with an easement under which the
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owner of the upper property may discharge surface waters over
such lower property ... defendant's property was originally
subject to a servitude to receive surface waters from plaintiff's
property ... the embankment ... has stood there as a constant,
open and notorious barrier to the natural flow of water since
1916 ... the right to be free from the flow of surface waters may
be acquired by ... prescription ... An easement is extinguished
by a use of the servient tenement ... if the use is adverse ... for
the period of prescription ... twenty years ... use which is
permissive is not adverse and will not ripen into a prescriptive
right ... The levee was constructed by agreement ... as a part of
a permanent system of drainage. A use under such an
agreement would not be in any sense in subordination to the
proprietor of the dominant tenement and therefore would not be
permissive ... unmolested use of land for a period of time
sufficient to acquire an easement by adverse use will be
presumed to be under a claim of right. The owner of the
servient estate ... has the burden of rebutting this presumption
by showing that the use was permissive ... We apply these
principles ... in determining whether an easement has been
extinguished ... the embankment ... was wholly and completely
inconsistent with the right of the proprietors of the dominant
tenement ... it interposed a solid barrier to such drainage. That
use is presumed to be ... adverse ... the essentials in the creation
and in the extinguishment of easements by prescription are not
fundamentally different. In both cases the use must be adverse
... the natural servitude has been extinguished by prescription."
Any use of land that is inconsistent with the rights of the land owner,
the Court indicated, represents a potentially adverse use, and the same
principle that applies to the typical occupation of a house, farm or ranch as
living quarters and yard or other surrounding grounds by an adverse
possessor, applies equally well to any use of land in the manner of an
easement, or to any use that prevents the use of an existing easement by it's
legal holder, as seen in this particular instance. The predecessors of both
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Kougl and Curry had participated in the creation of the dike along the
quarter section line, the Court recognized, and it had never been breached
prior to the arrival of Kougl, who had very clear physical notice of it's
existence, by virtue of it's presence along his boundary, at the time he
acquired his land, so any opportunity he may have had to successfully
protest the effect of the dike on his land had passed, and his surface drainage
easement had been lost. The Court was unsympathetic to Kougl's claim that
he had never abandoned the natural drainage easement, so he had the right to
assume that he could still use it whenever he wanted to use it, because
abandonment was not in play, since the only physical objects involved were
the dike and the ditch along the boundary, and neither of them had been
abandoned, making the point that in adverse and prescriptive rights cases,
the result is determined solely through the acts of the adverse claimant, and
not those of the record owner of either the land or the easement at issue. The
Court was likewise unimpressed with Kougl's suggestion that the dike in
question had existed only through his own personal sufferance or
permission, since it was obvious that he was not even present on the land
until many years after the dike was built, and permission that is not granted
until after a given use of land has commenced accomplishes nothing,
because the adverse party, having already put some portion of the land of the
record owner into use, has no obligation to accept such permission that
comes after the fact. Once an adverse use has commenced, the continuation
of that use represents an ongoing claim of right, the Court stated, openly set
forth by the adverse party, providing physical notice to the owner of record,
who must then effectively cause the use to actually cease, in order to
successfully prove that the use being made by the adverse party has been
interrupted and the statutory clock has been reset. A party who
acknowledges that his use of land is subordinate to the owner of record, the
Court noted, during the prescriptive period, before any rights are thereby
created, destroys his own opportunity to establish any permanent right, and
cannot successfully claim to have acquired any prescriptive rights, but
neither Curry nor his father had ever done so, therefore Kougl had no means
by which to show that the use of the dike by Curry was a use that had been
made in submission to any owner of the northwest quarter. Holding that any
use of the land of another, such as that made by Curry in maintaining the
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dike along the quarter line, that endures for the 20 year prescriptive period,
must be presumed to be adverse, the Court fully upheld the decision of the
lower court, terminating Kougl's surface drainage easement. In so ruling, the
Court had joined the majority of western states in adopting the position that
long standing use of land places a heavy burden of proof upon the owner of
the land that is being used by another party, requiring the owner of record to
present definitive proof that he actually gave the adverse claimant
permission to use his land, and that his permission was acknowledged and
accepted, in order to prevent adverse or prescriptive rights from developing
to fruition.
EDMUNDS v PLIANOS (1952)
Returning to the topic of dedication, here we examine another case
that demonstrates the willingness of the Court to accept extrinsic evidence
which supports public land rights in an urban setting, when the language
used in deeds that were composed by long deceased parties leaves their true
intentions unclear. Again in this instance the principal operative element of
justice is the Court's focus upon, and pursuit of, the intent of the original
parties, and the Court's respect for valuable evidence of historic use is quite
evident, indicating that the Court fully understands and appreciates that
subsequent land use is very often the best evidence of ambiguously
documented original intentions. To that end, here the Court analogizes
extrinsic evidence of dedication to comparable evidence pertaining to
boundaries, and expresses it's agreement with the position held by most
other states, that hearsay evidence is typically admissible in land rights
cases, as a means of validating historic land use. By this time, well over half
a century had passed since the original settlement of both the frontier and
many cities and towns, effectively eliminating any possibility of direct
testimony regarding the origin of many land uses, and the Court's position
honoring historic evidence relating to both land use and boundaries stands as
a judicial acknowledgement of the importance of maintaining the stability of
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local communities, by upholding the validity of historic land use patterns.
Not all evidence of prior use is sufficient to support an assertion of
dedication however, and the 1949 case of Stannus v Heiserman provides a
good example of a scenario in which limited use and evidence pertaining to
the origin of the roadway at issue resulted in an unsuccessful dedication
claim. In that case, Stannus owned the east half of a quarter section, while
Heiserman owned the west half of the same quarter section, and both of
them had ranch buildings in the northerly part of that quarter, but the only
existing public roadway in the vicinity ran along the south line of the
quarter. A road which had existed for over 40 years meandered southward
for nearly half a mile, from the area occupied by the ranch buildings to the
public road. This road apparently crossed the boundary between the litigants
an unspecified number of times, but the majority of it was located on the
Stannus tract, and it had been used consistently by both of the current
owners and their predecessors for decades. After a dispute broke out
between them, Stannus informed Heiserman that he was no longer willing to
allow Heiserman to use the portion of the road on the Stannus tract, but
Heiserman claimed that the road was public, so Stannus filed an action
against him, seeking a judicial decree that the road was private. The trial
court agreed with Heiserman that the road was public, apparently on the
basis of evidence that it had also been used by employees of an irrigation
company to reach a canal near the north end of the two ranches, and
evidence that some grading or repair work had been done on the road by a
county employee. The Court reversed that decision however, finding that the
work done on the road by the county employee was unauthorized, and that
the use of the road to reach the canal was not a genuinely public use. Citing
the First Church case of 1942, previously reviewed herein, and emphasizing
that just as in that case, the evidence indicated that the road at issue had been
built at the direction of a predecessor of Stannus, the Court determined that
the road in question had never been dedicated by implication, so Stannus
was free to exert complete control over his portion of it.
1865 - A certain block in Yankton was platted, lying east of Douglas
Avenue and north of Third Street. This block contained 18 typical
rectangular city lots, along with a platted alley, and Lots 1 through 9
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all fronted 44 feet on the east side of Douglas Avenue and extended
150 feet east to the alley, with Lot 1 being at the north end of the
block and Lot 9 being at the south end of the block, abutting Third
Street.
1866 to 1872 - Several businesses were evidently opened along Third
Street in other nearby blocks during this period, while few if any
businesses were opened along Douglas Avenue.
1873 - Burleigh, who was the original owner of all of the platted lots
in this block, decided to subdivide Lots 8 and 9, in order to create
several small parcels fronting on Third Street, to meet the demand for
business property with frontage on Third Street. He created 6
rectangular parcels, each 25 feet in width and 88 feet long, within
these two lots, but he did this only through the use of descriptive
language appearing in the deeds that he executed, rather than by
creating a new plat or revising the existing plat of this block. At this
time, he conveyed one of these 25 foot parcels to Balmat, describing it
as "the east half of the west third" of Lots 8 & 9. What use Balmat
made of this parcel, if any, is unknown.
1879 - Balmat conveyed her parcel to her son, with the following
language added to the description of the parcel: "There being an alley
on the north end of said described lot 12 feet wide." Whether or not
any actual use had been made of the alley mentioned by Balmat prior
to this time is unknown.
1882 - Burleigh conveyed the south 12 feet of Lot 7 to Faulk, but he
made no reference to it as being an alley. Whether or not Burleigh
conveyed the remainder of Lot 7 or any other land in the block to
Faulk is unknown, and what use Faulk made of her land, if any, is also
unknown.
1885 to 1887 - The Balmat parcel was conveyed twice during this
period, but it remained in the Balmat family. Both of these
conveyances repeated the reference to an unplatted alley that had first
been made in 1879.
1900 - Faulk conveyed the south 12 feet of Lot 7 to a member of the
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Balmat family. Whether or not this 12 foot strip was being actively
used as an alley at this time by anyone is unknown.
1915 - Douglas Avenue was paved, and an apron was constructed in
front of the south 12 feet of Lot 7, to facilitate the use of that strip as
an alley by the public.
1916 to 1922 - During this period the Balmat property, consisting of
the original Balmat parcel acquired in 1879 and the south 12 feet of
Lot 7 as well, was still owned by the Balmat family, and it was
presumably being used by them for business purposes, although what
kind of business they were engaged in is unknown. The unplatted
alley situated on the south 12 feet of Lot 7 was apparently in use by
this time, but when that use had commenced, how many parties were
using it, and how extensively it was being used, are all unknown.
What use was being made of the properties surrounding the Balmat
property is also unknown, but there were evidently some buildings
that were in active use as businesses on some of the lots and parcels in
the block by this time.
1923 to 1951 - The Balmat property in this block was conveyed an
unspecified number of times, and toward the end of this period it was
acquired by Plianos. At an unspecified time during this period, the
father of Edmunds evidently acquired one or more parcels in this
block, situated in an unspecified location adjoining the Balmat
property, and the Edmunds family began using the unplatted alley.
There is no indication of how frequently the unplatted alley was used
during this period, nor is there any indication that anyone was aware
that it was owned by Plianos, the father of Edmunds apparently used
the unplatted alley in the belief that it was public, since other parties
were evidently using it regularly on that basis during the latter part of
this period. For unknown reasons, after acquiring all of the former
Balmat property, Plianos decided to close the unplatted alley, in the
apparent belief that he had acquired complete control over it, as the
fee owner of the south 12 feet of Lot 7. There is no indication that
there was ever any dispute over the actual location of the unplatted
alley, or the location of any of the lot lines or parcel boundaries in this
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block, but the legal status of this alley was evidently unclear to all of
the parties. After his father died, Edmunds, acting as the executor of
his father's estate, filed an action against Plianos, seeking to have the
unplatted alley declared to be public, in order to prevent Plianos from
closing it.
Edmunds argued that although the alley in question had never been
platted or deeded as an alley, nor had it ever been formally dedicated, the
historic use of the unplatted alley by a multitude of different parties
represented public acceptance of an offer of dedication of the south 12 feet
of Lot 7 for that purpose, which had implicitly been made by the early
predecessors of Plianos, therefore a binding dedication of the unplatted alley
had taken place decades before Plianos arrived, so he had no right to close
the alley at issue. Plianos argued that the evidence of long use of the alley
was irrelevant, and could not be properly characterized as acceptance of an
offer of dedication, because the only evidence indicating that any offer of
dedication of the alley in question had ever been made was hearsay
evidence, since none of the original parties, such as Burleigh and Balmat,
were alive to testify regarding their actions or their intentions, so he had the
right to close the alley and put the 12 foot strip in dispute to other uses of his
own preference. The trial court decided that the evidence of a binding
common law dedication of the alley at issue by implication was both
acceptable and sufficient, ruling that the unplatted alley was public, so even
though Plianos owned the south 12 feet of Lot 7 in fee, he could not utilize it
for any other purpose.
Three potential issues were framed by the evidence that was presented
in this case, the primary issue being whether or not any alley, in addition to
the original platted alley, was ever really intended to be created at all, and
the secondary issues being where the additional alley was intended to be,
and whether it was originally envisioned as public or private, provided that
the primary question were to be answered in the affirmative. The
documentary evidence alone was entirely insufficient to decisively answer
any of these 3 potential questions, as there were no direct references to the
alleged alley as being either public or private, and even it's location was left
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highly ambiguous by the existing documents. The fact that the earliest
reference to the alley in question came from Balmat, who was an original
grantee of Burleigh, the creator of the subdivision, strongly suggested that
some conversation or informal agreement may have taken place between
them, after the Balmat parcel was first conveyed in 1873, leading Balmat to
believe that Burleigh was planning to create or dedicate an additional alley,
somewhere along the rear of the 6 parcels that he had created fronting on
Third Street. The description used by Balmat in 1879 however, did not
specify whether the alley was located on Lot 7 or Lot 8, or partly on both
lots, judging only from the descriptive language that was used by Balmat in
1879, which was merely reiterated in later deeds, the location could just as
easily have been intended to be within the north 12 feet of Lot 8, on the
Balmat property, as on the south 12 feet of Lot 7, which was still owned by
Burleigh, or alternatively, a 24 foot alley may have been intended, consisting
of 12 feet on Lot 7 and 12 feet on Lot 8. Though the originally intended
location and width of the unplatted alley were both quite indefinite and
uncertain, the Court observed, that matter had been settled by the passage of
time, as only the south 12 feet of Lot 7 had ever been put to use as an alley,
so the location issue required no attention from the Court, and since neither
of the litigants had made any argument that the alley was private, the Court
had no need to address that issue either, the purported alley was either
public, or it did not legally exist at all. Edmunds and his legal team did an
outstanding job of amassing both documentary evidence and evidence of
actual use, all of which proved to be highly instrumental in convincing the
Court that the alley in question had long been acknowledged as being public
in character by numerous parties. Edmunds had placed before the Court
extensive evidence of a wide variety of events and uses that had taken place
within the south 12 feet of Lot 7, including repair of potholes in the alley
and the removal of snow from the alley, both performed by the city, as well
as use of the alley by city garbage trucks, and the presence of underground
gas lines within the alley, which had been installed upon the presumption
that the unplatted alley was under the jurisdiction of Yankton. Duly
impressed with the evidence diligently assembled by Edmunds, or on his
behalf, and quoting in part from several of the earlier common law
dedication cases that we have reviewed, as well as comparable cases from
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California and Georgia, the Court stated that:
"In an implied common law dedication ... public use ... for a
period much shorter than that required to show title by
prescription may be sufficient to prove such intent and
dedication ... the issue is whether an intent to dedicate the land
to public use may be reasonably implied from the course of
conduct of the various owners ... no one now living can
remember a time when this land was ever used for anything but
a public alley ... without objection from any of the owners until
now ... Evidence of common repute when it relates to land
boundaries ... is admissible as an exception to the hearsay rule
... necessity is found to exist where the matter is an ancient one,
and thus living witnesses are not to be had ... the community's
conclusion, if any has been formed, is likely to be a trustworthy
one ... on land boundaries ... it is competent to establish
boundaries by proof of traditionary reputation in the
neighborhood ... evidence of common reputation existing
previous to the controversy may be introduced to prove the
existence of boundaries ... upon the question of the existence
and location of a public way ... reputation is admissible ...
Appellant is right in his contention that the recitals contained in
the Balmat deeds do not constitute a dedication of the alley, but
... while this evidence is not conclusive, it is competent
evidence of the fact of dedication ... structures were built to the
alley grade and were designed to take full advantage of the use
of this strip as a public alley ... successive owners of this 12
foot strip have kept it open as a thoroughfare ... the conduct of
the owners ... and the conduct of the public ... amounted to a
recognition of it as a public alley."
Although the location issue had been effectively taken out of play, as
noted above, since there was no controversy as to the location of the 12 foot
strip in dispute, the Court turned to decisions made in boundary cases from
other states, to provide support for it's position that the references that had
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been made to the unplatted alley in the Balmat deeds represented credible
and valuable evidence, bearing directly upon the matter at hand, despite the
fact that such evidence could be properly categorized as hearsay, as
contended by Plianos. The classification of evidence of different kinds is
always extremely important, and is often vital to the outcome of land rights
cases of all kinds, since the exclusion of evidence can potentially be fatal to
claims based on historic evidence or testimony, such as the dedication
assertion set forth here by Edmunds, so the determination made here by the
Court that hearsay evidence is admissible in land rights cases is highly
noteworthy. Hearsay is often accepted as legitimate, and relied upon by
courts, for purposes of boundary resolution, when it tends to support the
conditions on the ground, which are always presumed to have developed as
the result of innocent reliance upon evidence that can no longer be
substantiated in any other way, so such evidence can often represent the last
hope of success for a party who has long occupied or used land in good
faith, without adequate supporting documentation. Just as in this case, the
Court is typically quite sympathetic to those such as Edmunds whose rights
are entirely dependent upon land use patterns that were established by long
departed predecessors, so the Court in it's wisdom is generally disinclined to
hold the successors of parties who failed to fully or properly document their
intentions responsible for the shortcomings of their ancestors, and this
accounts for the Court's willingness to adopt and embrace even hearsay,
when necessary to protect well established land rights. As was also pointed
out by the Court here, unlike the doctrine of prescription, no specific time
period is required for implied dedication to take effect and become fully
binding, because dedication is a direct product of intent, while prescriptive
rights are expressly based upon the duration of the land use. Proof of
dedication is always preferable to prescription, in the eyes of the Court,
since prescription cannot be based on intent, because the requisite evidence
of intent is absent, were clear evidence of intent present, then the
prescriptive period would be irrelevant, so use for any length of time that
evinces an intention on the part of a land owner to dedicate a given area,
along with conditions representing acceptance thereof, suffices to secure an
implied dedication, in the view of the Court. Also quite notable is the fact
that the principle of inquiry notice, operating upon Plianos as a subsequent
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grantee, was once again a crucial factor in this case, as the Court declined to
allow him the right to ignore the existing conditions on the ground, which
were clearly indicative of a long bygone dedication, and a wealth of public
acceptance of that dedication as well, making it inequitable and unjustifiable
for Plianos to rely upon the mere fact that no reference was made to the 12
foot strip as being an alley in his deed. Having concluded that the decision of
the lower court was justified in all respects, the Court fully upheld it's ruling,
confirming that the unplatted alley had indeed been public for several
decades, possibly even before Plianos was born, under the doctrine of
dedication by implication, thus despite being it's fee owner he was obligated
to keep it unobstructed.
ANDAL v OSTHUS (1952)
Although it does not involve boundary resolution, our next case
returns us to the topic of survey evidence, and well illustrates how the Court
views and treats recent surveys of existing tracts that were originally defined
under PLSS rules by the GLO. While all of the survey details that a surveyor
would like to see are not provided by the Court in it's published opinion, as
is typically true, it is nevertheless possible to extract some valuable lessons
concerning the use of surveys as evidence from the case we are about to
review. A few earlier decisions of the Court relating to survey evidence, in
the context of description and conveyance issues, may also be worthy of
being briefly noted at this point. The 1909 case of Ernster v Christianson
resulted from a conveyance in which a certain tract was described as
containing 152 acres, but was found to actually contain only 108 acres by
the county surveyor. While no information was provided by the Court as to
either the origin or the nature of the tract in question, nor any details of the
resurvey, the subject property was presumably a PLSS tract, the boundaries
and acreage of which had been originally established by the GLO. In that
case, the Court upheld a lower court ruling that although the acreage did not
control the boundaries of the tract at issue, the stated acreage figure was
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intended to serve as the basis for the payments to be made to the grantor, so
acreage was a legally controlling element of the conveyance, requiring the
grantor to accept a reduction in the agreed purchase price, due to the proven
acreage shortage, having adopted the acreage figure provided by the county
surveyor as presumptively correct. In Smith v Johnson, which came before
the Court twice, in 1912 and 1915, Smith conveyed several parts of a certain
Section 30 to Johnson, describing the conveyed area as containing "480
acres, more or less" apparently unaware of the fact that 3 lots in the west tier
of that section, which were included in the conveyance, had been platted as
containing less than 40 acres. No resurveys were done, so the GLO plat
represented the sole source of survey evidence relating to the land at issue,
and it evidently indicated that the 3 lots were each about 10 acres short of 40
acres. The trial court held that Smith was not liable to Johnson for any
shortage of acreage, due to the presence of the phrase "more or less", but the
Court reversed that decision, on the basis that as an innocent grantee,
Johnson was not required to know or to learn the acreage figures that were
stated on the relevant GLO plat, nor was he responsible for obtaining a
survey to verify the acreage figure used by Smith, because a grantee is
entitled to fully rely upon the information provided to him by his grantor,
leaving Smith liable to Johnson for failing to convey a full 480 acres.
Bunkers v Guernsey was another case involving a controversy between a
grantor and grantee, centered upon an apparent acreage discrepancy, which
came to the Court 3 times, in 1915, 1916 and 1919. In that case Guernsey
deeded "206 acres, more or less" to Bunkers, who paid Guernsey for the
tract by the acre, but 12 years later Bunkers alleged that the tract contained
only 177 acres, apparently on the basis of a resurvey done for him at that
time. Once again, although there was no evidence indicating that the acreage
issue had any connection to the boundaries of the subject property, the Court
ultimately upheld the significance of the stated acreage figure as a
controlling aspect of the conveyance, while also noting that the passage of
12 years since the deed had been executed was of no consequence, because
the only relevant date was the date upon which the acreage error was
discovered. Emphasizing the description burden that rests upon all typical
grantors, and reiterating that a typical grantee has the right to rely fully upon
any description provided by his grantor, the Court confirmed that a grantee
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cannot be required to order a survey to verify an acreage figure stated by his
grantor, thus Guernsey was liable to Bunkers for the missing acreage.
Prior to 1952 - Ole Andal was a widower with 9 adult children, and he
owned two quarter sections in separate locations, one of which was
being farmed by Melvin, who was one of Ole's sons, while the other
one was being farmed by Walter, who was the husband of one of Ole's
daughters. Where Ole and his other 7 children lived is unknown, but
when he died, all 9 of his children held a meeting, to decide what
should be done with their late father's land, in which they each held an
equal ownership interest as his heirs. Melvin and Walter both wanted
to acquire sole ownership of their respective quarter sections, and all
of the heirs agreed that they should be allowed to do so, except for 2
of Ole's daughters, Emma Osthus and Mable Osthus, who wanted
both of the quarters to be auctioned off to the highest bidder, in order
for all of the heirs to get the maximum possible amount of money for
the land. The other 7 children prevailed over their 2 sisters in this
disagreement however, so Emma and Mable agreed to allow the
quarters to be sold to Melvin and Walter at a bargain price per acre,
but in order to obtain the agreement of their 2 sisters to their plan,
each of the other 7 children agreed to pay an additional amount, to be
determined by the total acreage of the quarters, to Emma and Mable.
An attorney was present at this meeting, and he reduced the intentions
of all of the heirs to writing, to their mutual satisfaction, and they all
signed the agreement, so all of them understood what was to be done.
The agreement did not expressly state that the quarters were to be
surveyed, but it indicated that the total acreage of the Andal land was
unknown, implying that the acreage would need to be determined in
some manner. Following this meeting, Oscar, who was the
administrator of his late father's estate, apparently ordered surveys to
be done, in order to determine the exact current acreage of each of the
2 quarters, which had been originally platted and patented as
containing 160 acres and 153 acres respectively. Why Oscar or any of
the others suspected that the originally platted acreage of these
quarters might be seriously inaccurate is unknown, since there is no
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indication that either of these quarters was bounded by any body of
water, but it appears that they were correct in their suspicions
regarding the original acreage figures, because the surveys ordered by
Oscar indicated that the quarters actually contained only 143 acres and
122 acres respectively. Upon obtaining this information, all of the
heirs carried out their respective roles under the agreement, all of the
appointed payments were made, based on the surveyed acreage, and
deeds were prepared, which when signed and delivered would convey
the 2 quarters to Melvin and Walter as agreed and conclude the
matter. Emma and Mable however, refused to sign the deeds, on the
basis that they had been cheated, as a result of the reduction in the
acreage of their late father's land, so Oscar filed an action against
them, seeking to have them compelled to accept the reduced acreage
payments and deed their interests in the 2 quarters to Melvin and
Walter per the agreement.
The 7 Andal siblings, represented by Oscar as the administrator in
charge of the estate proceedings, argued that a legitimate agreement had
been reached, and a valid contract had been created between all of the heirs,
concerning the disposal of all of the lands of their late father, so all of the
heirs, including Emma and Mable, were legally bound to fully carry out the
terms of the contract, which stipulated that the lands in dispute were to be
conveyed to Melvin and Walter, on the basis of the actual current acreage of
those lands. Oscar further argued that although no surveys were specifically
referenced in the contract, the surveys that had been done were necessary to
determine the true current acreage of the lands, and the surveyed acreage
was an accurate representation of the true current extent of those lands,
therefore Emma and Mable were bound to accept the payments that had
been made to them based on the surveyed acreage, and they had no right to
insist upon the use of the original acreage figures. Emma and Mable argued
that they had the right to rely upon the original acreage figures, for purposes
of the compensation that was to be made to them, in exchange for their
agreement to relinquish all of their interests in the lands of their late father,
so they were not bound to convey their interests to Melvin and Walter until
they had been fully compensated, based on the true original acreage of the
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lands in controversy. They further argued that the original acreage of their
late father's lands, as those lands had been patented, was presumptively
correct, and there was no basis upon which to accept the recently surveyed
acreage figures as being correct, so they had no obligation to concede that
the recent surveys were part of the contract that they had entered with their
brothers and sisters, and no obligation to honor the results of those surveys
as accurate or binding. The trial court held that the recently surveyed acreage
was presumptively accurate, and the surveys had been contemplated as part
of the agreement that had been made by all of the parties, so Emma and
Mable were legally bound to deed all of their interests in the lands of their
late father to Melvin and Walter, since they had been fully compensated, on
the basis of the current acreage of the lands at issue, under the terms of the
contract that had been entered by all of the heirs.
Experienced surveyors know of course that although acreage figures
appearing on GLO plats can play a role in defining certain platted
boundaries, under some circumstances, acreage as a rule does not